Hofer v. Or. Health & Sci. Univ.

328 Or.App. 352

536 P.3d 989

Linda Sue HOFER, Plaintiff-Appellant,

v.OREGON HEALTH AND SCIENCE UNIVERSITY, Defendant-Respondent.

A172328

Court of Appeals of Oregon.

Submitted on Remand October 27, 2022

September 27, 2023

David Wallace, Portland, argued the cause for appellant. Also on the brief was Wallace Law Firm.

Janet M. Schroer, Portland, argued the cause for respondent. Also on the brief were Holly E. Pettit and Hart Wagner LLP.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

MOONEY, J.

This case is before us on remand from the Supreme Court.

Hofer v. Oregon Health and Science University , 370 Or. 214, 516 P.3d 1175 (2022) ( Hofer II ) (remanding in light of Lowell v. Medford School Dist. 549C , 370 Or. 79, 515 P.3d 359 (2022) ( Lowell II )). When this case was previously before us, we concluded that (1) absolute privilege barred plaintiff's defamation claim, and (2) the trial court did not err in dismissing plaintiff's medical negligence claim because no issue of material fact existed with respect to that claim and Oregon Health and Science University (OHSU) was entitled to prevail as a matter of law.¹ Hofer v. OHSU , 319 Or App 603, 511 P.3d 414, vac'd and rem'd , 370 Or. 214, 516 P.3d 1175 (2022) ( Hofer I ). We affirmed. Id.

In reaching our conclusion that absolute privilege barred plaintiff's defamation claim, we relied on our earlier opinion in Lowell v. Medford School Dist. 549C , 313 Or App 599, 497 P.3d 797 (2021), rev'd , 370 Or. 79, 515 P.3d 359 (2022) ( Lowell I ), where we held, essentially, that any employee of a public school district had an absolute privilege to make defamatory statements when carrying out their official duties. As OHSU acknowledges, Lowell II narrowed the application of absolute privilege and now operates to defeat summary judgment on plaintiff's defamation claim on that basis. The trial court, thus, erred when it granted summary judgment to OHSU on the defamation claim on the basis of absolute privilege.

OHSU notes, however, that it supported its motion for summary judgment on the defamation claim on two distinct theories: absolute privilege and the alternative ground that "plaintiff cannot establish the requisite elements of a claim for defamation." The parties briefed and argued both theories in the trial court, but that court granted the motion solely on the basis of absolute privilege and did not rule on OHSU's alternative theory. Relying on Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001), and Sherertz v. Brownstein Rask , 314 Or App 331, 341, 498 P.3d 850 (2021), rev. den. , 369 Or. 338, 504 P.3d 1181 (2022), OHSU urges us to affirm the trial court's summary judgment ruling based on OHSU's alternative theory, contending that it is legally correct and supports summary judgment in its favor as a matter of law. Plaintiff responds that the alternative theory for OHSU's summary judgment motion is not before us because the trial court did not reach it.

OHSU is not asking us to take up an argument that it is making for the first time on appeal. In its summary judgment motion, OHSU argued that plaintiff could not establish that the allegedly defamatory statements written in OHSU's medical records system had been published to a third party or that any such publication resulted in damage to her. OHSU submitted excerpts from plaintiff's deposition testimony in which she stated that she was not sure who had seen the statements and that she, therefore, could not point to any harm caused by someone else seeing them. Plaintiff was required to address the alternative argument in the trial court because she would have had the burden of persuasion on each element of her defamation claim at trial. ORCP 47 C. She did so in her written response to the motion and she supported her response with deposition testimony of Dr. Bernard concerning the allegedly defamatory statements that Bernard typed into the medical record system, an audit report identifying individuals who had accessed plaintiff's OHSU medical records over a one-year period of time, and her attorney's ORCP 47 E affidavit. The parties, thus, developed the record on the alternative argument.

When plaintiff assigned error to the trial court's ruling on OHSU's summary judgment motion, it was up to OHSU whether to continue both arguments before us. See Sherertz , 314 Or App at 341 n 8, 498 P.3d 850 ("If an alternative argument was made to the trial court, it is up to the party whether to continue pursuing it on appeal[.]"). OHSU pursued its alternative argument on appeal as it was permitted to do, and, therefore, if the alternative argument would support summary judgment in OHSU's favor as a matter of law, then "we may simply resolve it." Sherertz , 314 Or App at 341, 498 P.3d 850 ; see also Eklof v. Steward , 360 Or. 717, 736, 385 P.3d 1074 (2016) (noting that in the summary judgment context the "particular importance" of the Outdoor Media requirement that the record be materially the same as it would have been had the prevailing party raised the alternative basis below, where "the opposing party had no reason to adduce evidence on an issue that was not raised in the summary judgment motion"). We turn to the question of whether OHSU's alternative theory would support summary judgment in its favor and, thus, provide a basis for affirming the trial court.²

We begin by delineating the scope of our review. The Oregon Supreme Court recently wrote:

"The contours of summary judgment review are set by the operative complaint and the specific arguments for summary judgment advanced by a party. Under ORCP 47 C, the party opposing summary judgment has the burden of producing evidence on any issue raised in the motion as to which that party would have the burden of persuasion at trial."

Adelsperger v. Elkside Development LLC , 371 Or. 61, 65, 529 P.3d 230 (2023) (internal quotation marks omitted). We, thus, begin with the operative complaint.

In her second amended complaint, first claim for relief (defamation), plaintiff alleges that Dr. MacDonald, an OHSU-employed physician, "wrote, drafted, prepared, authored, dictated, wrote, and communicated a summary statement of her *** evaluation of plaintiff[,]" Second Amended Complaint at ¶10, Filed Oct 11, 2018, Hofer v. Oregon Health and Science University (18CV14839), that the "statement was a false communication of fact, published in the EPIC system database as part of plaintiff's medical records[,]" id. at ¶12, "where they could be seen by all potential healthcare providers who query the health information exchange software and were read by all who treated and would treat plaintiff in the future." Id. at ¶15. Plaintiff alleged harm from the publication of MacDonald's false statements.

In her second claim for relief (defamation), plaintiff alleges that Dr. Bernard, an OHSU-employed physician, "prepared, authored, dictated, wrote, and communicated the summary statement of [MacDonald's] evaluation of plaintiff in conjunction with any summary statements or notes from Ms. MacDonald[,]" id. at ¶20, and that the "statement was a false communication of fact, published in the EPIC database system[,]" id. at ¶22. Plaintiff alleged harm from the publication of Bernard's false statements.

OHSU's summary judgment motion, as pertinent here, places at issue plaintiff's ability to prove that the allegedly false statements were published, and that the publication of those statements caused plaintiff harm. As already mentioned, OHSU supported its motion with plaintiff's deposition testimony that she was not sure who had seen the statements and that she, therefore, could not point to any harm caused by someone else seeing them. And, again, plaintiff opposed the motion and submitted deposition testimony of Bernard concerning the allegedly defamatory statements that Bernard typed into the electronic medical record, an audit report identifying individuals who had accessed plaintiff's OHSU medical records over a one-year period of time, and her attorney's ORCP 47 E affidavit. In its reply memorandum in support of its motion, OHSU narrowed its focus somewhat to the question of publication when it agreed that "although damages may be presumed when a defamatory statement is in written form, plaintiff is still required to link the presumed harm to the publication of the defamatory statement to a third person." It did not address the ORCP 47 E affidavit submitted by plaintiff in opposition to OHSU's summary judgment motion.

"We review a trial court's grant of summary judgment for errors of law * * *." Beneficial Oregon, Inc. v. Bivins , 313 Or App 275, 277, 496 P.3d 1104 (2021). We are to affirm only "if the pleadings, depositions, affidavits, declarations, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law." ORCP 47 C. We view the record that was before the trial court in the light most favorable to plaintiff as the party opposing summary judgment, and we "examine whether no objectively reasonable juror could find in [plaintiff's] favor on the question at issue." Beneficial Oregon, Inc. , 313 Or App at 277, 496 P.3d 1104. We view the ORCP 47 E affidavit submitted by plaintiff "like all parts of the record, in the light most favorable" to her as the party opposing the motion. Two Two v. Fujitec America, Inc. , 355 Or. 319, 331, 325 P.3d 707 (2014).

The pertinent facts are few. Plaintiff has a movement disorder for which she received treatment from her Washington physician in the form of the prescribed medication methadone. Plaintiff moved to Oregon and began the process of looking for an Oregon physician who would assume treatment of her movement disorder and, in particular, an Oregon physician who would assume the role of prescriber for methadone. In that process, plaintiff saw MacDonald, a physician and third year resident at OHSU's neurology clinic. MacDonald...