Taylor v. Portland Adventist Med. Ctr.

• Decision Date: 13 April 2011
• Docket Number: No. 070505420; A142219.
• Citation: 255 P.3d 526,242 Or.App. 92
• Parties: Dixie L. TAYLOR, Personal Representative for the Estate of Irma J. Taylor, Deceased, Plaintiff–Respondent,v.PORTLAND ADVENTIST MEDICAL CENTER, an Oregon corporation, Defendant–Respondent,andGregory Robinson, M.D., and Mark R. Anderson, M.D., Appellants.
• Court: Oregon Court of Appeals

242 Or.App. 92
255 P.3d 526

Dixie L. TAYLOR, Personal Representative for the Estate of Irma J. Taylor, Deceased, Plaintiff–Respondent,
v.
PORTLAND ADVENTIST MEDICAL CENTER, an Oregon corporation, Defendant–Respondent,andGregory Robinson, M.D., and Mark R. Anderson, M.D., Appellants.

No. 070505420; A142219.

Court of Appeals of Oregon.

Argued and Submitted Jan. 27, 2011.Decided April 13, 2011.

[255 P.3d 527]

Rachel Woods Arnold argued the cause for appellant Gregory E. Robinson, M.D. On the opening brief were Paul Silver and Lindsay Hart Neil Weigler. With them on the reply brief was Rachel Woods Arnold.Lindsey H. Hughes, Portland, argued the cause for appellant Mark R. Anderson, M.D. With her on the opening brief were Susan Mahoney and Keating Jones Hughes PC. On the reply brief were Lindsey H. Hughes and Keating Jones Hughes PC.Maureen Leonard argued the cause for respondent Dixie L. Taylor. With her on the briefs was Robert Beatty–Walters.Janet M. Schroer, Portland, argued the cause and filed the brief for respondent Portland Adventist Medical Center.Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and DUNCAN, Judge.BREWER, C.J.

[242 Or.App. 95] Appellants, who are two physicians employed by defendant Portland Adventist Medical Center, appeal from separate orders denying their motions to intervene in this action for medical malpractice resulting in wrongful death, in which plaintiff, the personal representative of her mother's estate, sought damages against defendant hospital based on the alleged negligence of the physicians. We review the trial court rulings on the physicians' motions for permissive intervention under ORCP 33 C for the proper exercise of discretion. See Samuels v. Hubbard, 71 Or.App. 481, 692 P.2d 700 (1984), rev. den., 299 Or. 118, 700 P.2d 250 (1985). We affirm.

Plaintiff is the personal representative for the estate of her mother, Irma Taylor. Irma

[255 P.3d 528]

Taylor died after having been seen, treated, and sent home by appellant Dr. Mark Anderson, an emergency department physician, at the emergency room of defendant's hospital. Plaintiff filed a complaint against defendant in this action on May 14, 2007. In her complaint, plaintiff alleged that defendant was negligent because of acts and omissions of its employee or agent, Dr. Mark Anderson, in failing to diagnose and treat the decedent's acute infection. In particular, plaintiff alleged that Anderson had evaluated the decedent in the emergency room and that the decedent had a fever and was suffering from myelodysplastic syndrome, “which increased her risk of infection.” Plaintiff alleged that Anderson discharged the decedent later that evening with a diagnosis of acute febrile illness, and the next morning the decedent was found unresponsive in her home and was ultimately pronounced dead. Plaintiff did not join Anderson or any other person or entity besides defendant as a party to the action.

Defendant filed an answer in the action in which it denied plaintiff's allegations of negligence. However, defendant did not file a third-party complaint against Anderson or take any other steps to join any additional party in the action. Trial initially was set in the case for June 14, 2008. The parties later stipulated to a set-over of the trial date to January 2009.

Plaintiff deposed Anderson on January 21, 2008. During that deposition, plaintiff learned for the first time the [242 Or.App. 96] extent to which Anderson had consulted with appellant Dr. Gregory Robinson, the decedent's primary care physician, and that Anderson believed that he and Robinson had made a joint treatment decision about the decedent's care, including her discharge from the emergency room. In September 2008, defendant tendered the defense of the action to Anderson, and Anderson's attorney was substituted as counsel for defendant.

On September 16, 2008, plaintiff deposed Robinson and questioned him about his consultation with Anderson. Robinson acknowledged that he had consulted with Anderson about the decedent's condition and treatment. Robinson testified that he had agreed with Anderson's decision to send the decedent home from the emergency room, but Robinson disagreed with Anderson's deposition testimony that the physicians had made a joint discharge decision. On November 11, 2008, plaintiff's counsel notified Robinson's attorney that she was considering adding Robinson as a named defendant. However, plaintiff's counsel later learned that Robinson, like Anderson, was an employee of defendant.

On December 18, 2008, plaintiff filed and served an amended complaint that added allegations of defendant's negligence for the acts or omissions of its employee or agent, Robinson. The amended complaint alleged that “Dr. Anderson and Dr. Robinson together and in concert” negligently misdiagnosed the decedent's condition and “together negligently determined” that she should be discharged from the hospital. All told, the amended complaint included six specifications of negligence, each of which alleged that the two physicians acted “together” or “in concert.” After plaintiff filed the amended complaint, trial was reset for May 26, 2009.

In February 2009, defendant filed its answer to the amended complaint, in which it admitted that the two physicians were its employees acting within the course and scope of their employment.¹ Also in February 2009, defendant's [242 Or.App. 97] own attorney was resubstituted, in place of Anderson's attorney, as counsel for defendant in the action.

On February 16, 2009, Robinson filed a motion to intervene in the action, and, on February 17, Anderson also filed a motion to intervene. In those motions, the physicians argued that a judgment against defendant could have an adverse effect on their professional licenses, credentials, and malpractice insurance coverage, in part, because of a perceived duty on defendant's part to report adverse medical malpractice judgments under federal and state law. In particular, the

[255 P.3d 529]

physicians argued that an adverse verdict would require defendant to issue reports to the National Practitioner Data Bank, 42 U.S.C. § 11131 (requiring reports on medical malpractice payments), and the Oregon Medical Board (ORS 742.400(2)(a); ORS 742.400(4)), which, in turn, could trigger an investigation by that board. In addition, they asserted that their interests were in potential conflict with defendant's interests and that their interests also were in potential conflict with each other. The physicians also argued that their absence as parties might expose them to greater vulnerability to a later indemnity claim by defendant. In particular, they asserted that their employment agreements with defendant required them to fully “cooperate in good faith, using their best efforts” to defend any claims made.

In response, plaintiff argued that there was no conflict between or among defendant and the physicians, that any judgment against defendant would not have a direct adverse effect on the physicians, and that, to plaintiff's prejudice, the physicians had unduly delayed seeking intervention. Plaintiff also argued that she was permitted by law to choose to sue a vicariously liable defendant alone and should not be forced to sue the employees as well. As plaintiff saw things, intervention would give defendant and the physicians “three shots at my experts, three sets of experts,” and extended opening statements.

On March 17, Judge Kantor held a hearing on the physicians' motions to intervene. At the hearing, the court engaged in the following colloquy with defendant's counsel about why defendant had not filed a third-party complaint for indemnity against the physicians:

[242 Or.App. 98] “THE COURT: Tell me why it doesn't—while other—the idea of third-party for indemnity, which is a common practice in all kinds of litigation, why that doesn't solve all the concerns except [defendant's] worry that doctors are going to be upset, that the word's going to get out that [defendant] sues doctors.

“[DEFENDANT'S COUNSEL]: Well, I would tell Your Honor that's extremely significant.”

Defendant's attorney explained that defendant and the physicians had made the deliberate decision that defendant would not sue the physicians for indemnity; instead, the physicians would seek to intervene and, by some method, resolve indemnity issues at the same time.

In its letter opinion denying the physicians' motions to intervene, the trial court stated:

“Although I could imagine a scenario which would support allowing intervention by a treating doctor into a medical negligence case against a hospital, probably more in the nature of a ‘conditional’ intervention, the circumstances of this case do not support that conclusion. I agree with [plaintiff] on most of the legal and factual issues. While I think that this case is stronger for the defense and doctors than in Kissoon v. Araujo, 849 S2d [So.2d] 426 (Fla.App.2003), that case still supports the plaintiff's position here, especially as the ‘threat’ of indemnity is one which the parties to the contract created for themselves. But even if I agreed more with the defense on some of the issues, these motions were filed too late in the game. For all of these reasons, the motions are denied.”

On April 21, 2009, Judge Kantor entered a written order denying the physicians' motions to intervene.

On April 22, 2009, the case was assigned to Judge Bloch for trial. Robinson then filed a renewed motion to intervene, reasserting the arguments that he had asserted in his first motion to intervene.² On May 5, defendant filed a written submission joining Robinson's motion to intervene. At [242 Or.App. 99] oral argument on the motion, defendant's counsel argued that defendant intended to file a “third-party complaint or file a subsequent complaint against” the two physicians. The trial court

[255 P.3d 530]

pressed defendant's counsel about the nature of the asserted conflict between and among...