Concienne v. Asante

299 Or.App. 490

450 P.3d 533

Robert CONCIENNE, Plaintiff-Appellant,

v. ASANTE, dba Rogue Valley Medical Center, and Ruth Rabinovitch, M.D., Defendants,andTracey Stephen Kather, N.P., Defendant-Respondent.

A162899

Court of Appeals of Oregon.

Argued and submitted October 22, 2018.

September 18, 2019

Kevin L. Cathcart, Portland, argued the cause and filed the briefs for appellant.

Janet M. Schroer, Portland, argued the cause for respondent. Also on the brief were Ruth C. Rocker and Hart Wagner LLP.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

The issue in this case is whether plaintiff’s bankruptcy estate is the owner of plaintiff’s medical malpractice claim because plaintiff was or reasonably should have been aware of the potential claim when he failed to list it as an asset in an earlier Chapter 7 bankruptcy proceeding. As discussed below, we conclude that, as a matter of law, plaintiff was or reasonably should have been aware of the claim when he failed to list it with the bankruptcy court and, therefore, the bankruptcy estate owns and controls the claim.

Plaintiff alleges that defendant Kather, a nurse practitioner, failed to diagnose plaintiff with acute respiratory failure secondary to pneumocystis jiroveci pneumonia (PCP), which is an illness caused by AIDS. Plaintiff alleges that that failure resulted in plaintiff’s hospitalization and the removal of his colon. Nearly one year after that hospitalization, plaintiff concluded a Chapter 7 bankruptcy case in which the court determined that plaintiff had no assets and, therefore, discharged his debts. Plaintiff did not disclose the potential malpractice claim as an asset during that proceeding. Plaintiff later filed this action. Kather, citing the doctrine of judicial estoppel, moved for summary judgment on the ground that plaintiff’s attempt to bring this malpractice case was inconsistent with his position in the bankruptcy case that he had no assets—including any claims against third parties. Kather also raised the alternative argument that plaintiff was not the party in interest—and therefore lacked standing—because plaintiff’s claim was an unscheduled asset that belonged to his bankruptcy estate. The trial court concluded that judicial estoppel applied and granted defendant’s motion, and plaintiff appeals. For the reasons explained below, we conclude that plaintiff lacked standing to bring the claim. Accordingly, we vacate the judgment in Kather’s favor and remand for the trial court to dismiss plaintiff’s complaint for lack of standing.

I. FACTUAL AND PROCEDURAL BACKGROUND

We begin with a factual background of plaintiff’s bankruptcy case and subsequent medical malpractice lawsuit.

The relevant facts that underlie the issue of standing are undisputed.

A. Plaintiff initiated a Chapter 13 bankruptcy case.

On January 8, 2009, plaintiff filed a petition for bankruptcy in the United States Bankruptcy Court in the District of Oregon. Because he was able to earn income at the time, the bankruptcy court deemed him eligible for Chapter 13 status and established a bankruptcy plan for repayment of his debts.

B. Plaintiff’s Relevant Medical History

Between January and June 2010, plaintiff was having trouble breathing and sought medical care from Kather, a nurse practitioner. Kather diagnosed plaintiff with reactive airway disease (RAD) and provided plaintiff with an inhaler to help manage his symptoms. On July 8, 2010, plaintiff began to have great difficulty breathing and was admitted to the emergency department at Rogue Valley Medical Center (RVMC), where doctors determined plaintiff’s breathing difficulties and other symptoms were PCP—not RAD—resulting from plaintiff being positive with HIV and having AIDS. Prior to that diagnosis, plaintiff was unaware that he was HIV positive, let alone that the disease had progressed to such an advanced stage. After he was admitted to the intensive care ward at RVMC, plaintiff developed a severe infection in his colon, requiring a complete colectomy on July 25, 2010.

C. Plaintiff converted his Chapter 13 to a Chapter 7 bankruptcy case and received a "no asset" discharge of his debts.

Approximately six months after plaintiff’s AIDS diagnosis, hospitalization, and colectomy, plaintiff was no longer able to make the payments required by his Chapter 13 bankruptcy and converted his bankruptcy case to Chapter 7 on January 26, 2011. In converting from a Chapter 13 to a Chapter 7, plaintiff was required to file a list of creditors holding unsecured claims as of the date of conversion, including creditors associated with plaintiff’s medical care that he received in relation to his AIDS diagnosis, hospitalization, and surgery. Plaintiff had accrued nearly $80,000 in debt at that point, over $70,000 of which was attributable to AIDS-related medical services largely arising out of his prior hospitalization.

As part of the Chapter 7 conversion, plaintiff was also required to submit to the bankruptcy court a list, or "schedule," of assets as required by the Bankruptcy Code, 11 USC § 521, that plaintiff possessed as of that date. Plaintiff’s schedule of assets required him to disclose, among other things, "other contingent and unliquidated claims of every nature," and an estimated value of each. Plaintiff marked in his schedule that he had "none."

On May 12, 2011, the bankruptcy court discharged plaintiff’s debt accrued as a result of his medical services related to his AIDS diagnosis.¹ The court’s order of discharge identified plaintiff’s petition as a "no asset" case, as the court was under the impression that plaintiff possessed no property that could be disposed of for the benefit of his creditors.

D. Plaintiff filed his medical malpractice case against Kather.

On December 21, 2012, nearly 18 months after the close of plaintiff’s bankruptcy case, plaintiff filed his first amended complaint against Kather, alleging professional negligence and seeking $3,000,000 in economic and noneconomic damages. Specifically, plaintiff’s complaint alleged that Kather was negligent "in one or more of the following particulars":

"(a) In failing to diagnose plaintiff’s respiratory failure secondary to pneumocystis jiroveci pneumonia (PCP) when he knew or should have known that plaintiff was H.I.V. positive and had A.I.D.S., "(b) In failing to recommend that plaintiff be tested for H.I.V., when he knew or should have known that plaintiff’s medical history put him at risk for being H.I.V. positive[,]

"(c) In failing to refer plaintiff to a medical doctor when it was apparent that plaintiff was not responding to the prescribed treatment for RAD/Asthmatic Bronchitis, and

"(d) In failing to confer with a medical doctor in regard to plaintiff’s breathing problems when it was apparent that plaintiff was not responding to the prescribed treatment for RAD/Asthmatic Bronchitis."

Plaintiff further alleged that, as a result of the negligence, plaintiff was hospitalized for two months, lost his colon, and suffered corresponding damages.

During his deposition on May 12, 2016, plaintiff testified that he "rather quickly" blamed Kather for the allegedly negligent care that he had provided. When Kather’s attorney asked plaintiff whether he "had decided within a couple of months after [his] discharge from the hospital that [defendant] had made mistakes," plaintiff replied, "I would have to say yes." Plaintiff then explained that, at first, he was in "shock" and "totally confused" about the sudden change wrought by his hospitalization and surgery in July 2010, but, when he "started really thinking about everything," he "made the decision to file a lawsuit." During that period—within a couple of months after his discharge from the hospital—plaintiff felt "that both [Kather], and also the hospital, were negligent." Plaintiff "didn’t rush" to file a lawsuit, however, because he knew it would "affect [Kather’s] life[.]"

Later, on July 4, 2016, plaintiff submitted a declaration in which he asserted that he had not disclosed the claim against defendant during his Chapter 7 bankruptcy proceeding because, at that point, he "hadn’t hired an attorney to investigate or pursue any claims" and he "really didn’t think that it would come to [him] bringing litigation against defendant." Plaintiff further explained that he had been reluctant to bring a lawsuit because he was not "sue happy" and "wasn’t really sure if [Kather] did anything wrong initially[.]"

Plaintiff proceeded to describe the circumstances leading to his decision to file his claim against Kather. In January 2011, around the time that plaintiff converted to a Chapter 7 bankruptcy and averred that he had no claims against third parties, plaintiff moved to Palm Springs, California. In the "months after" he moved, plaintiff "met and spoke with other individuals in the community who had survived AIDS" who expressed surprise that plaintiff’s condition had become so serious. In September of that year, plaintiff moved in with his partner, an attorney, who "expressed concern" that plaintiff "may have a potential medical malpractice claim against [his] providers." Plaintiff had already retrieved his medical records in June 2011 to establish care with new providers in Palm Springs, and, in October of that year, he began to send those records to medical malpractice attorneys for evaluation to initiate the claim at issue here. Plaintiff filed his complaint in July 2012 and filed his amended complaint in December of that year.

Kather moved for summary judgment. As noted, his primary argument was that plaintiff was judicially estopped from bringing his claim because he had failed to list the claim as an asset when he converted to Chapter 7 bankruptcy. Plaintiff responded that he had not been obligated to list the claim at that time because he did not "discover" the claim until after his bankruptcy case had closed. In the alternative, Kather argued that plaintiff lacked standing to bring his negligence claim because the...