Eusterman v. Northwest Permanente, P.C.Eusterman v. Northwest Permanente, P.C.
Plaintiff, a physician, appeals a summary judgment in favor of defendants Northwest Permanente, P.C. (Northwest), plaintiffs former employer, and Kaiser Foundation Health Plan of the Northwest (Kaiser), a provider of managed care services. In essence, plaintiffs theory is that Northwest terminated his employment because of defendants’ concerns about his approval of time off for injured workers, his changes in other doctors’ diagnoses, and his efforts to obtain an osteopathic treatment for a patient, and that such concerns were motivated by finances, not medical judgment. Plaintiff claims that Northwest wrongly discharged him because he fulfilled public duties relating to patient care and that Kaiser tortiously interfered with his employment contract with Northwest. Because we conclude that plaintiff failed to establish an essential element of each of his claims— the existence of a public duty to support his wrongful discharge claim and the existence of improper means or an improper motive to support his claim for intentional interference with economic relations — we affirm.
This appeal arises from a summary judgment, so we view the facts and inferences in the light most favorable to plaintiff, the nonmoving party. ORCP 47 C. The record, viewed in the light most favorable to рlaintiff, contains the following facts.
Northwest is a professional corporation of medical doctors. It had a contractual relationship with Kaiser, under which Northwest was exclusively responsible for the provision of all medical services that Kaiser required. As relevant here, Kaiser, in turn, contracted with employers and insurers to have Northwest physicians provide medical care services for injured workers.
Plaintiff was one of the physicians who provided those occupational health services. Plaintiff was a locum tenens physician, which meant that he did not have patients of his own but filled in and provided outpatient care when a patient’s primary physician was unavailable. He worked for Northwest for 14 months under a series of term contracts that, among other provisions, allowed for his termination without cause on 30 days’ notice or with 30 days’ pay. The contract also gave Northwest medical staff the right to determine the manner in which plaintiff would provide treatment.
The vast majority — about 90 to 95 percent — of plaintiff s patients were seeking treatment for workplace injuries covered by workers’ compensation insurance. When an injured worker was unable to return to work for a period of time, Northwest doctors were to approve time off or “time loss days.” Kаiser uses information about time loss days authorized by its associated physicians to sell its managed care services to insurers such as the State Accident Insurance Fund (SAIF). Defendants communicated to plaintiff and other Northwest doctors that a low incidence of time loss days was financially advantageous for Kaiser. For example, about six months before plaintiffs employment ended, plaintiff and others, including Kaiser case managers, attended a meeting in which, according to the minutes, they were told that “our time loss days have again increased,” making Kaiser less competitive with other managed care organizations.
Becausе of the attention that defendants paid to time loss, plaintiff felt pressured to release workers to return to work earlier than he deemed appropriate. Kaiser case managers automatically became involved when a doctor approved time loss of more than 10 or 20 days. During his employment, plaintiff was given a memo (dated three years before the start of his employment) that announced a contract between Kaiser and SAIF for managed care services and
“This is routine information we are providing for our SAIF Corporation [managed care] contract. Every month all clinicians who have seen SAIF covered workers and who have authorized time loss will receive this report. We are not attempting to assess medical appropriateness of these [time loss days] but are providing the information so you can assess it. Please authorize only medically necessary time loss. Rapid return to work speeds recovery and reduces costs. If the worker can bе released to light duty, please do so. Thanks.”
Plaintiff perceived these reports as a form of pressure. On occasion, plaintiff told some of his colleagues that he felt that money was too much of a concern.
Plaintiff also was involved in some disputes regarding the appropriate diagnoses and treatment plans for patients. He and other doctors disagreed about whether one patient had a degenerative, employment-related condition and about when another patient’s finger splint should be removed. Plaintiff was once told that he would not be allowed to see a particular patient unless he agreed not to change the patient’s diagnosis or treatment plan, although he did eventually see the patient despite his refusal to assent to such an agreement. On another occasion, plaintiff changed another doctor’s diagnosis from tendinitis to carpal tunnel syndrome; plaintiff believed that objections to that change in diagnosis were motivated by anger about the additional time loss. In e-mail messages regarding two patients, Kaiser employees wrote to plaintiffs superiors at Northwest to question his diagnoses and treatment plans.
Plaintiff also was involved in disputes regarding the use of a procedure called osteoрathic manipulative treatment (OMT). Although Northwest’s and Kaiser’s written policies did not prohibit the use of OMT, plaintiffs superiors, Drs. Thiessen and McDonald, eventually instructed him not to use it. Plaintiff s superiors had a negative view of OMT and believed it could be dangerous for plaintiff to perform it. Plaintiff acknowledges that Northwest could forbid his performance of OMT, and he did not use the procedure after being told not to do so. Nevertheless, plaintiff wanted to refer a patient to an external doctor of osteopathy for OMT and was frustrated when his superiors told him that, if a patient could be seen internally, the patient could not be referred externally. Plaintiff knew of no one within Northwest who provided OMT.
Shortly before plaintiffs termination, he met with Thiessen and McDonald to discuss OMT. Soon after the meeting, Thiessen and McDonald decided to terminate plaintiffs contract. Their decision was ratified in a meeting of an occupational medicine group that included Kaiser employees, and plaintiffs employment was terminated the next day. According to plaintiff, when McDonald informed plaintiff of his termination, he stated that one or two Kaiser case managers had insisted that plaintiff be terminated, even though McDonald thought plaintiff was an excellent doctor and had tried to keep him on.
In respоnse to his termination, plaintiff asserted tort claims against Northwest and Kaiser, and they filed motions for summaiy judgment. The trial court found that, with regard to the wrongful discharge claim against Northwest, plaintiff had failed to identify any public duty or employment-related right that could be the basis for a wrongful discharge claim and also had failed to introduce evidence that Northwest’s termination decision was motivated by anything other than its concerns about plaintiffs performance. Regarding plaintiffs claim against Kaiser for intentional interference with economic relations, the trial court found no evidence on three essential elements: that plaintiffs termination was wrongful, that Kaiser interfered with plaintiffs employment relationship with Northwest, and that Kaiser acted with any illegal or improper motive. Plaintiff assigns error to the resulting grants
We first address the wrongful discharge claim. The tort of wrongful discharge stands as an exception to the usual rule that at-will employees can be discharged at any time for any reason.
Babick v. Oregon Arena Corp.,
As a preliminary matter, Northwest contends that, because of plaintiffs employment contract, he cannot bring a wrongful discharge claim but rather is limited to any remedies provided in his contract. We reject that argument. As we concluded in
Dunwoody v. Handskill Corp.,
We next considеr whether plaintiffs wrongful discharge claim is legally sufficient. Here, plaintiff asserts that he was fulfilling a public duty. 2 Plaintiff characterizes the following as protected activities:
“authorizing time loss benefits and modified work days in amounts greater than [d] efendants and their employer/ insurer ‘customers’ wanted; referring patients outside of [defendants’ system for necessary care unavailable within; and making correct diagnoses based on his medical judgment that [d] efendants and their employer/insurer clients wanted to avoid.”
Plaintiff relies on three groups of statutes — concerning health insurance, regulation of physicians, and workers’ compensation — in support of his argument. 3 None of the statutes encourages the specific acts identified by plaintiff; indeed, most of the statutes do not, by their terms, even apply to the situations described by plaintiff. Accordingly, the statutes do not create a public duty that could support his wrongful discharge claim. We examine each group of statutes in turn.
Pointing to health insurance statutes, plaintiff relies on provisions of ORS chapter 743: ORS 743.803(2)(e) and (i), ORS 743.829, and ORS 743.834. Plaintiff contends that those statutes create a public duty more
ORS 743.803(2), which establishes requirements for “medical services contract [s]” between insurers and providers, 4 is inapplicable for at least two reasons. First, under ORS 743.801(10), a medical services contract “does not include a contract of employment,” such as the contract under which plaintiff was employed by Northwest. The legislature thus chose to address the relationship between insurers and providers, but to exclude employment relationships. In light of that express limitation, we cannot conclude that the statute creates any public duty or employment-related right applicable in this case. Second, under ORS 743.811, ORS 743.803 does not apply to medical services contracts for services provided under the Workers’ Compensation Law. According to plaintiff, 90 to 95 percent of his patients were injured workers covered by workers’ compensation insurance; ORS 743.803 could not create any duty pertaining to those patients and, indeed, plaintiff has not identified any examples of conflicts with his supervisors at Northwest that involved patients outside the workers’ compensation context. 5
Similarly, ORS 743.829, which addresses decisions about care provided in a “health care facility,” 6 and ORS 743.834, which addresses information and referrals provided to patients, 7 are inapplicable becаuse those statutes limit only the actions that an “insurer” may take against a provider. 8 We do not understand plaintiff to argue that Northwest is an “insurer” within the meaning of the statutes. 9 See ORS 743.801(8) (defining “insurer”).
Plaintiff thus has not introduced any evidence of conduct that would fall within the cited provisions of ORS chapter 743. Because the legislature chose to limit expressly
Next, plaintiff points to statutes relating to regulation of physicians in ORS chapter 677. He argues that those statutes protect his actions of changing other doctors’ diagnoses, using OMT before being instructed not to do so, and authorizing time loss days. ORS 677.095(1) provides, in part, that a doctor “has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians” in comparable circumstances. ORS 677.190(l)(a) provides that the Board of Medical Examiners may suspend or revoke the license of a doctor for unprofessional or dishonorable conduct, which ORS 677.188(4)(a) defines tо include conduct or practices that violate ethical standards or that might endanger patients or impair a physician’s ability to practice medicine safely and skillfully. Those statutes are too general to create a public duty applicable under these particular circumstances.
In
Babick,
the court concluded that a public concern about private law enforcement does not establish a duty for private security guards to arrest law-breaking concert-goers and that a statutory scheme for licensing private security guards “does not suggest that the activities of private security personnel enjoy any highеr social value than the activities of employees in other professions to which the at-will rule applies.”
For purposes of our analysis, we assume that the statutes regulating physicians create a duty to practice medicine ethically and non-negligently. Plaintiff introduced his own and another doctor’s testimony that, “to use that degree of care, skill and diligence that is used by ordinarily careful physicians [,]” a doctor must exercise his independent professional judgment. Plaintiff argues that, to comply with that standard, he had to exercise his professional judgment to authorize time loss days, make referrals for OMT, and change other doctors’ diagnoses. We assume, then, that plaintiff was complying with the duty of care required by the statutes at issue, but that assumption does not end our analysis.
The question here is whether the duties established by the statutes are of the type that provide a basis for a wrongful discharge claim. Rather than establish duties to perform specific acts, as required by Babick, the statutes at issue here contemрlate an exercise of professional judgment that may be satisfied by a range of acts. In fact, doctors can and do disagree about what specific acts are required in particular circumstances. The statutes regulating physicians do not contemplate that a doctor is immunized from all review or criticisms of his decisions so long as the doctor believes that he is providing the correct care. See, e.g., ORS 677.265(l)(c) (Board of Medical Examiners shall determine whether a doctor used the appropriate degree of care in providing medical services). To whatever extent plaintiff had a duty to use his professional judgmеnt, other doctors at Northwest, including the doctors whose diagnoses plaintiff changed, also had the duty to use their professional judgment when they disagreed with plaintiff. Plaintiff acknowledged that Northwest had the right to review his decisions and ensure that he provided services in a satisfactory way.
Nothing in the record suggests that the other Northwest doctors acted contrary to their own professional
judgment or that, even when case managers complained about plaintiffs diagnoses, those complaints were made to anyone except other doctors. This is not a case in which — to imagine an example — one doctor wanted to trеat a patient’s heart attack while another doctor or
Finally, plaintiff relies on provisions of ORS chapter 656 that address insurers’ obligations under the Workers’ Compensation Law. He argues that ORS 656.245 and ORS 656.262 create public duties for him to provide injured workers with whatever medical services he deemed necessary. However, the cited statutes provide no support for that alleged public duty. ORS 656.245(l)(a), which requires workers’ compensation “insurers” to provide medical treatment for compensable injuries, 10 has nothing to say about a physician’s duty to use his independent medical judgment to render diagnoses or treatment plans. ORS 656.262(4)(g) provides that an insurer need not pay temporary disability compensation unless it is authorized by a practitioner. 11 According to plaintiff, thаt statute implies that a physician treating a workers’ compensation patient has particular duties toward that patient. However, our case law does not support an exemption from the at-will rule based on such vague implications; ORS 656.262(4)(g) does not suggest a duty to perform any specific act or otherwise demonstrate that a physician’s actions under workers’ compensation law enjoy a higher social value than the activities of employees in other professions to which the at-will rule applies, as required under Babick. The workers’ compensation statutes simply do not establish a public duty of the sort that plaintiff assеrts. Because plaintiff has failed to show that the acts for which he was terminated constituted performance of a cognizable “important public duty,” the trial court did not err in entering summary judgment in favor of Northwest on the wrongful discharge claim.
We next turn to plaintiffs claim against Kaiser for intentional interference with economic relations. To establish such a claim, a plaintiff must demonstrate:
“(1) the existence of a valid business relationship or expectancy, (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect betwеen the interference and damage to economic relations, and (6) damages.”
Uptown Heights Associates v. Seafirst Corp.,
We begin with a preliminary matter: whether Kaiser was a third party who could be liable for interference with the contract between plaintiff and Northwest. In arguing that it was not because it shared a “common interest” with Northwest regarding the provision of medical services, Kaiser reads too much into two of our prior decisions.
Second, Kaiser relies on
Friedman v. Mt. Village, Inc.,
We turn, then, to plaintiffs theory about Kaiser’s motives or means. In his second amended comрlaint, plaintiff alleged that two Kaiser case managers interfered with his employment contract “in substantial part” because of his exercise of independent medical judgment regarding diagnoses and treatment and his advocacy of the position that other doctors should be allowed to exercise their medical judgment. That complaint characterized Kaiser’s conduct as interference “for improper purposes and/or through improper means,” but plaintiffs arguments all focus on Kaiser’s motive, which, he claims, was to maximize its profits. However, such a motive is not improper.
Top Service Body Shop v. Allstate Ins. Co.,
Using the same reasoning that he applies to public duties under ORS chapters 656, 677, and 743, plaintiff also argues that Kaiser’s motives were wrongful because Kaiser’s interference was motivated by plaintiffs “protected activity.” In other words, plaintiff seems to argue that Kaiser wished to increase its profits in ways that were unlawful. That argument actually speaks less about Kaiser’s motives than about its means, though plaintiff does not frame it as such. However, plaintiff here has not adequately shown that those means — apparently, urging or insisting that plaintiff be fired for his allegedly protected activities “violate some objective, identifiable standard, such as a statute or other regulation * *
See Northwest Natural Gas Co.,
We have already concluded that the statutes on which plaintiff relies do not establish that the actions that plaintiff claims were the basis for terminating him were protected activity, thus rendering Northwest’s termination decision wrongful. For the same reasons, those statutes cannot establish that Kaiser’s influence on plaintiffs termination violated some objective, identifiable standard. Plaintiff has not argued that the statutes apply any differently in evaluating Kaiser’s actions, but becausе some of his arguments on wrongful termination seem to apply more properly to Kaiser than to Northwest, we address the statutes again only to that limited extent and otherwise conclude that the statutes that plaintiff cites do not support an argument that Kaiser used wrongful means to interfere with plaintiffs employment.
First, we note that plaintiff has failed to produce any evidence that Kaiser’s actions violated ORS 743.834, which protects a doctor’s ability to discuss treatment alternatives with patients and refer them to other providers. 12 Plaintiff has introduced evidence of only one instance, when he proposed a referral for OMT, to which thе statute might apply. However, plaintiff presents no evidence that Kaiser objected to the OMT referral at all, let alone that it interfered with his employment on that basis. Accordingly, we reject that argument without further discussion.
Second, we note that, although the workers’ compensation statutes cited by plaintiff establish that an insurer must provide treatment authorized by a medical provider, they do not require insurers to provide, without question, any treatment recommended by any physician. 13 Plaintiff has not articulated any argument that Kaiser’s conduct regarding his employment amounted to a denial of medical treatment for covered workers. Accordingly, he has failed to demonstrate that Kaiser used improper means to interfere with his contract with Northwest, and summary judgment for Kaiser was appropriate.
Affirmed.
Notes
Plaintiff also assigns error to the trial court’s denial of his motions to compel. On that issue, we affirm the trial court’s decisions without discussion.
Plaintiff has labeled his claim as involving job-related rights “and/or” public duties. However, all or nearly all of his allegations are more properly characterized as referencing public duties; as described by plaintiff, they involve obligations that he was required to fulfill, rather than benefits that he was entitled to as an employee. Accordingly, our analysis is frаmed in terms of public duties.
Plaintiffs employment was terminated in 1998. Since then, some of the statutes that the parties cite have been amended, some more than once. Given the way the parties frame their arguments, however, we do not understand the various amendments to affect our analysis in this case. Accordingly, for convenience, all statutory references are to the 2003 versions.
The portions of ORS 743.803(2) on which plaintiff relies are as follows:
“A medical services contract shall:
Hs íjí ifc iji
“(e) Provide that a doctor of medicine or osteopathy licensed under ORS chapter 677 shall be retained by the other party to the medical services contract and shall be respоnsible for all final medical and mental health decisions relating to coverage or payment made pursuant to the medical services contract.
“(f) Provide that a physician who is practicing in conformity with ORS 677.095 may advocate a decision, policy or practice without being subject to termination or penalty for the sole reason of such advocacy.”
Although the parties did not address ORS 743.811, we may do so. “In construing a statute, th[e] court is responsible for identifying the correct interpretation, whether or not asserted by the parties.”
Stull v. Hoke,
ORS 743.829 provides:
“(1) All clinical decisions regarding length of stay in a health care facility as defined in ORS 442.015, transfer betwеen levels of care and follow-up care shall be the decision of the treating provider in consultation with the patient, as appropriate.
“(2) An insurer may not terminate or restrict the practice privileges of any provider solely on the basis of one or more decisions made pursuant to subsection (1) of this section.”
ORS 743.834 provides, in part:
“No insurer may terminate or otherwise financially penalize a provider for:
“(1) Providing information to or communicating with a patient in a manner that is not slanderous, defamatory or intentionally inaccurate concerning:
“(a) Any aspect of the patient’s medical condition;
“(b) Any proposed treatment or treatment alternatives, whether covered by thе insurer’s health benefit plan or not; or
“(c) The provider’s general financial arrangement with the insurer.
“(2)(a) Referring a patient to another provider, whether or not that provider is under contract with the insurer.”
Furthermore, ORS 743.829 applies to decisions regarding care in “a health care facility as defined in ORS 442.015” — that is, “a hospital, a long term care facility, an ambulatory surgical center, a freestanding birthing center or an outpatient renal dialysis facility.” ORS 442.015(16)(a). We do not understand plaintiff to allege that his activities involved care provided in such a facility, so ORS 743.829 is inapplicable for that reason as well.
At oral argument, plaintiffs counsel indicated that Kaiser was an insurer. He did not argue that Northwest was an insurer but argued that the statutory policies expressed in ORS chapter 743 nevertheless should apply to Northwest.
ORS 656.245(l)(a) provides, in part:
“For every compensable injury, the insurer * * * shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires * *
ORS 656.262(4)(g) provides, in part:
“Temporary disability compensation is not due and payable * * * after the worker’s attending physician * * * ceases to authorize temporary disability or for any period of time not authorized by the attending physician * *
As relevant here, ORS 743.834 provides:
“No insurer may terminate or otherwise financially penalize a provider for:
“(1) Providing information to or communicating with a patient * * * concerning:
“(b) Any proposed treatment or treatment alternatives, whether covered by the insurer’s health benefit plan or not; * * *
“(2)(a) Referring a patient to another provider, whether or not that provider is under contract with the insurer.”
Plaintiff argues that various statutes establish that it is improper for an insurance company to attempt to influence a physician’s diagnoses and treatment decisions for an insured patient in order to reduce costs. Even if we were to accept that argument, no reasonable jury could conclude that Kaiser had that alleged purpose. The monthly reports showing each physicians’ time loss authorizations bear the message “[pjlease authorize only medically necessary time loss. * * * If the worker can be released to light duty, please do so.” Although plaintiff suggests that those words imply that physicians should authorize less time loss than medically necessary, nothing in the record supports that interpretation. E-mail messages from Kaiser employees to plaintiff’s superiors questioning plaintiffs diagnoses and time loss authorizations likewise do not suffice. The messages suggest that the concerns about time loss were driven by questions of medical appropriateness. They were addressed to plaintiffs superiors — themselves physicians — to resolve medical questions.