Plaintiff appeals a judgment in favor of defendant Willamette Falls Hospital on her negligence claim. Plaintiffs claim arises from defendant’s failure to produce some of the medical records of her late husband, Simpkins, until about two years after plaintiff first requested them. Plaintiff contends that, because of defendant’s negligence in producing the records, she lost the ability to bring a medical malpractice or wrongful death claim against defendant and one of its employees, Dr. Goldenberg. The trial court concluded that plaintiffs fifth amended complaint failed to allege facts sufficient to state a claim for negligence. Because we conclude that plaintiff stated a claim, we reverse and remand for further proceedings.
In determining the sufficiency of a complaint, we accept the plaintiffs well-pleaded
After performing a stress test on Simpkins in October 1996, Goldenberg told Simpkins that the results were normal and did not recommend follow-up care, additional testing, or treatment. In fact, though, the results were abnormal and indicated a need for follow-up regarding possible coronary artery disease. Goldenberg did not relay the test results to Simpkins’s primary care physician or to the cardiologist who had referred Simpkins for the stress test, nor did he inform those doctors that the test had been conducted. As a result of negligence associated with the stress test, Simpkins suffered a fatal heart attack in April 1998 that was caused by coronary artery disease.
In 2000, plaintiff twice requested that defendant produce all records pertaining to Simpkins, and the records also were subpoenaed in the context of an action against defendant. In response, defendant produced some of Simpkins’s records, but omitted all records of the stress test that Goldenberg had performed. Plaintiff did not obtain those records from defendant until March 2002, by which time the parties agree that any claims arising from negligence associated with the stress test were barred by the applicable statute of limitations. Until plaintiff obtained the information showing that Goldenberg had performed a stress test on Simpkins, no records identified Goldenberg as having provided any medical services to Simpkins. Plaintiff asserted that defendant “is liable for plaintiffs lost ability to make a negligence claim against * * * Goldenberg for his medical mistakes * *
Plaintiff filed her fifth amended complaint — the complaint at issue in this appeal — in October 2003. Without answering that complaint, defendant moved for judgment on the pleadings, contending that Oregon law does not recognize a claim for negligent failure to produce records and that plaintiff had not alleged any sort of special relationship that would create a duty to protect plaintiff from economic loss. In response, plaintiff argued that defendant was trying to revive its earlier motions to dismiss and for summary judgment, which had been denied, and referred the court to her responses to those earlier motions. In those responses, plaintiff had asserted that defendant had a duty, under former ORS 192.525(2) (2001), repealed by Or Laws 2003, ch 86, § 8, to produce the medical records. Meanwhile, plaintiff filed a second motion for partial summary judgment, contending that former ORS 192.525(2) established a duty to disclose medical records and that defendant was negligent as a matter of law for failing to produce the requested records. In its response to that motion, defendant acknowledged that plaintiff was asserting that former ORS 192.525(2) provided grounds for “an action for damages for negligence contending violation of a duty imposed by statute.”
The trial court dismissed plaintiffs claim. The court reasoned that, because plaintiffs claim against defendant was for an economic loss (namely, the loss of her medical malpractice claim against Goldenberg and defendant based on the stress test), she needed to plead a source of duty outside the common law of negligence; the court concluded that plaintiff had failed to do so. Plaintiff appeals, assigning error to the trial court’s grant of defendant’s motion for judgment on the pleadings.
Before turning to the substance of the parties’ arguments, we consider whether defendant’s motion for judgment on the pleadings was properly before the trial court, despite being filed before defendant answered the operative complaint. ORCP 21 B provides, “After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.” (Emphasis added.) Although defendant purported to move for judgment on the pleadings, defendant had not answered plaintiffs fifth amended complaint when it moved against that complaint. Thus, under ORCP 21B, a motion for judgment on the pleadings was premature.
We turn to the parties’ arguments. Plaintiff first contends that defendant’s failure to fully and timely produce medical records is actionable under the ordinary negligence principles set forth in
Fazzolari v. Portland School Dist. No.
1J,
Common-law negligence traditionally has not provided a remedy for purely economic or psychological injuries in the absence of a specific duty.
Fazzolari,
To the extent that
Boden v. Ford Motor Co.,
Here, plaintiff contends that, because her claims arose out of a personal injury claim, they were not for purely
economic loss and she therefore need not allege an independent duty. She asserts that, because her lost claim against defendant and Goldenberg was based on Goldenberg’s treatment of Simpkins and the resulting personal injuries and death, her negligence claim against defendant for loss of that claim is, in fact, not for purely economic loss. That argument is not persuasive. Regardless of the basis of the underlying claim, the loss of that claim was an economic loss: plaintiffs alleged injury was the loss of a right to seek financial compensation, not an injury to person or property. Plaintiffs claim is in some ways
Turning to a consideration of whether defendant owed plaintiff some duty that would allow plaintiff to bring her claim despite the economic-loss rule, we conclude that defendant did owe such a duty. We first examine the nature of the duty that must be alleged in cases such as this. In
Fazzolari,
the court explained that “duty plays an affirmative role when an injured plaintiff invokes
obligations arising
from a defendant’s particular status or relationships,
ox from legislation,
beyond the generalized standards that the common law of negligence imposes on persons at large.”
“ ‘sources other than the common law of negligence,’ namely the statute governing the commitment or release of patients under the jurisdiction of the Psychiatric Security Review Board, imposed a duty on a ‘community mental health provider’ like defendant to use reasonable care to protect the public in leaving a potentially dangerous patient at large. [Cain v. Rijken,300 Or 706 , 715,717 P2d 140 (1986)]. Whether failure to do so foreseeably created a risk of the kind of conduct by the patient and the kind of injuries suffered by the victim were issues to be determined by a factfinder. Id.”
Fazzolari,
Here, plaintiff relies on a duty arising from a statute, arguing that former ORS 192.525(2) imposed a duty on defendant to produce medical records. 1 That section provided, in part:
“Except as otherwise provided by law, a health care provider must disclose a patient’s medical records after receiving a written release authorization that directs the health care provider to produce the patient’s medical records. * * * If the patient is not able to give consent to the release, the authorization must be signed by a person authorized by law to obtain the medical records sought under the authorization.”
Defendant does not deny that it is a “health care provider.” Its only argument regarding the statute (which we address later in this opinion) is that plaintiff failed to cite the statute in her fifth amended complaint or in her memorandum of law in response to defendant’s motion for judgment on the pleadings.
To determine whether a statute creates a duty, we examine the legislature’s intent.
SFG Income Fund, LP v. May,
The statutory text supports plaintiffs view that the legislature intended to impose a duty on health care providers such as defendant to produce medical records to patients or persons authorized to request such records. By using the term “must,” the legislature signaled its intention that
former
ORS 192.525(2) mandate particular action.
The next question is the scope of the statutory duty. “[W]hen a special relationship or status gives rise to the duty of care, that relationship or status
may
also define the scope of the duty by specifically describing the types of harms or class of persons that it encompasses.”
Allstate Ins. Co. v. Tenant Screening Services, Inc.,
Although the legislature stated a policy of protecting both the confidentiality of medical records and individuals’ right to review their own records, former ORS 192.525(1), 2 it did not identify in the statute the specific harms that it meant to prevent. Because the text does not plainly address that issue, then, we turn to the legislative history — which supports the view that the duty exists to protect patients from experiencing harm during litigation as a result of health care providers’ failure to fully produce medical records on request.
The Oregon State Bar Procedure and Practice Committee proposed Senate Bill (SB) 253 (1997), which added subsections (2) through (10) to former ORS 192.525, to “cure [ ] a recurring problem in litigation today: the untimely discovery that complete patient records have not been provided in response to the patient’s request.” Testimony, Senate Business, Law, and Government Committee, SB 253, Feb 27, 1997, Ex J (written statement of Oregon State Bar Procedure and Practice Committee). As a result of such failures to produce records, the Bar committee explained, patients were sometimes accused of deliberately withholding records, which could lead to problems such as the exclusion of testimony or a mistrial. Id. The Bar committee stated that the bill would reduce civil discovery disputes, improve litigation procedures, and allow for evaluation of claims for damages. Id. The staff measure summary prepared for the House Committee on Judiciary reiterated concerns that, in personal injury litigation, plaintiffs might face discovery sanctions as a result of health care providers’ failure to properly respond to patients’ request for their medical records. Staff Measure Summary, House Committee on Judiciary, SB 253B, June 24, 1997. In short, the legislature imposed a duty to disclose medical records precisely because of concerns that patients’ ability to pursue personal injury claims would be compromised unless health care providers fully complied with requests for medical records.
As noted, on appeal, defendant also contends, as an alternative ground for affirming the trial court’s ruling, that plaintiff failed to adequately plead the foreseeability of the harm that she alleges. However, defendant acknowledges that it did not raise in the trial court the issue of failure to plead foreseeability, and we therefore do not consider it.
See Rogers v. Valley Bronze of Oregon, Inc.,
Defendant also contends that plaintiff failed to adequately plead the existence of a statutory duty to produce medical records. We disagree. A plaintiff pleads duty if the complaint “allege [s] what duty defendant owed plaintiff, or facts from which the law will imply a duty * *
Settle v. PGE,
Here, although plaintiff did not cite the statute in her complaint, she alleged facts from which defendant’s duty under former ORS 192.525(2) may be implied. Former ORS 192.525(2) provided, in part, that “a health care provider must disclose a patient’s medical records after receiving a written release authorization that directs the health care provider to produce the patient’s medical records.” Plaintiff alleged that she twice requested the records from defendant, a hospital, and that the records also were subpoenaed from defendant. Those are allegations of fact from which legal conclusions about the applicability of former ORS 192.525(2) may be drawn. Viewing those allegations in the light most favorable to plaintiff, we conclude that plaintiff pleaded facts establishing defendant’s duty under former ORS 192.525(2).
We conclude that plaintiff stated a claim for negligence based on defendant’s statutory duty to produce the medical records.
Reversed and remanded.
Notes
The trial court incorrectly concluded that, because plaintiff was not claiming a statutory tort, she also was not contending that former ORS 192.525(2) was a source of duty pertinent to her negligence claim. Although plaintiff’s arguments did evolve over the course of the litigation, she squarely asserted that the statute was a source of duty for a negligence claim.
Former ORS 192.525(1) provided:
“The Legislative Assembly declares that it is the policy of the State of Oregon to protect both the right of an individual to have the medical history of the individual protected from disclosure to persons other than the health care provider and insurer of the individual who needs such information, and the right of an individual to review the medical records of that individual. It is recognized that both rights may be limited, but only to benefit the patient. These rights of confidentiality and full access must be protected by private and public institutions providing health care services and by private practitioners of the healing arts. The State of Oregon commits itself to fulfilling the objectives of this public policy for public providers of health care. Private practitioners of the healing arts and private institutions providing health care services are encouraged to adopt voluntary guidelines that will grant health care recipients access to their own medical records while preserving those records from unnecessary disclosure.”
Former ORS 192.525(4) and (5) provided:
“(4) A health care provider may withhold another health care provider’s medical record after receiving a written release authorization * * *. If a health care provider withholds any medical record for any reason after receiving a written release authorization * * *, the withheld medical record must be identified by the health care provider in the response to the release authorization by disclosing the author of the medical record and the date of the medical record.
“(5) Notwithstanding subsection (2) of this section, if, in the professional judgment of a physician ***or***a licensed mental health care provider, the disclosure of a medical record or any part of a medical record would be injurious to a patient, the health care provider may withhold a medical record or provide an accurate and representative summary of the factual information contained in the medical record. A health care provider must give notice if a medical record is withheld or a summary is provided under this subsection in the response to the release authorization.”
Former ORS 195.525(7) provided:
“A patient may not maintain an action for damages against a health care provider for disclosures made by the health care provider in good faith reliance on a properly executed written release authorization as provided for in this section.”