# Dr. Erik Natkin, DO PC v. American Osteopathic Association

> District Court, D. Oregon · January 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10395557

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DR. ERIK NATKIN, D.O. P.C., a Utah Case No. 3:16-v-1494-SI
corporation; and DR. ERIK NATKIN, D.O.,
an individual OPINION AND ORDER

Plaintiffs,

v.

AMERICAN OSTEOPATHIC
ASSOCIATION, et al.,

Defendants.

Benjamin Natkin, LAW OFFICES OF BENJAMIN NATKIN, 9854 National Boulevard, Suite 369, Los
Angeles, CA 90034; and Clark E. Rasche, WATKINSON LAIRD RUBENSTEIN PC, P.O. Box 10567,
Eugene OR 97440. Of Attorneys for Plaintiffs.

Blake J. Robinson and Caitlin P. Shin, DAVIS WRIGHT TREMAINE LLP, 1300 SW Fifth Avenue,
Suite 2400, Portland OR 97201. Of Attorneys for Defendants Samaritan Health Services, Inc.;
Good Samaritan Hospital Corvallis; and Dr. Luis R. Vela, D.O.

J. Michael Porter and Jollee Faber Patterson, MILLER NASH GRAHAM & DUNN LLP, 3400 U.S.
Bancorp Tower, 111 SW Fifth Avenue, Portland, OR 97204; and Mark H. Meyerhoff and
Christopher S. Frederick, LIEBERT CASSIDY WHITMORE, 6033 West Century Boulevard, Fifth
Floor, Los Angeles, CA 90045. Of Attorneys for Defendant Western University of Health
Sciences.

Michael C. Lewton, COSGRAVE VERGEER KESTER LLP, 900 SW Fifth Avenue, 24th Floor,
Portland, OR 97204; John R. Danos, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, 555
S. Flower Street, Suite 2900, Los Angeles, CA 90071; and Joshua P. Dennis, SCHWABE,
WILLIAMSON & WYATT, 1211 SW Fifth Avenue, Suite 1900, Portland, OR 97204. Of Attorneys
for Defendant American Osteopathic Association.
Thomas R. Rask III, KELL ALTERMAN & RUNSTEIN LLP, 520 SW Yamhill Street, Suite 600,
Portland, OR 97204; and Ronald Thomas Vera and Robert P. Johnston, LAW OFFICES OF VERA
AND BARBOSA, 223 West Foothill Boulevard, Suite 200, Claremont, CA 91711. Of Attorneys for
Defendant Osteopathic Postdoctoral Training Institute, OPTI-West Educational Consortium.

Michael H. Simon, District Judge.

Defendant Osteopathic Postdoctoral Training Institute, OPTI-West Educational
Consortium (OPTI-West) moves for summary judgment against Plaintiffs’ remaining claims,
breach of the common law duty of fair procedure and tortious interference with economic
relations. OPTI-West argues that the claims are barred under the principles described by the
Supreme Court in Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78
(1978), and its progeny, requiring deference to academic decisions. OPTI-West also argues that
Plaintiffs fail to raise a genuine issue of material fact that OPTI-West had a duty to provide
Plaintiff Dr. Eric E. Natkin (Natkin) with fair procedure or caused him to be deprived of fair
procedure, or that OPTI-West tortiously interfered with Natkin’s contracts. For the following
reasons, viewing the facts in the light most favorable to Plaintiffs as the Court must at summary
judgment, the Court finds that Horowitz does not apply and that Plaintiffs have raised issues of
fact for the jury on their claims against OPTI-West and thus denies OPTI-West’s motion for
summary judgment.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
Defendant American Osteopathic Association (AOA) serves as the accrediting agency for
osteopathic medical schools and hospitals like Good Samaritan Hospital Corvallis (also known
as Good Samaritan Regional Medical Center) (Good Sam), where Natkin was a resident. OPTI-
West is a California corporation that oversees and administers the AOA’s requirements for
medical schools within its region. OPTI-West has oversight over the residency programs within
its region, including at Good Sam. Defendant Samaritan Health Services, Inc. (SHS) is the parent
company of Good Sam.

SHS started a new orthopedic residency program, including at Good Sam.1 OPTI-West
helped SHS develop its procedures and provided guidance to SHS and Good Sam on how to run
its residency program.2 Natkin was in the first class of orthopedic surgery residents at Good Sam.
At the time Natkin began his medical residency, Dr. Luis Vela, D.O. (Vela), was the Program
Director (PD) for the orthopedic surgery program, and Dr. Alissa Craft was the Director of

1 There are other hospitals along with Good Sam in the SHS family of hospitals, but only
Good Sam is relevant for purposes of this motion.
2 AOA provides a process under which doctors of osteopathy can become board certified
in orthopedic surgery. See generally https://certification.osteopathic.org/orthopedic-surgery/.
Medical Education (DME). After one year, Dr. Craft left and Vela became the DME, while also
continuing to serve as the PD for the orthopedic surgery program.
During Natkin’s fourth year of residency, Dr. Seth Criner, D.O., another orthopedic
surgery resident, planned a “fracture conference” for September 27, 2013, during which the
medical students and residents examined fracture cases that had come into the emergency

department. It is a confidential process in which the more senior residents ask questions of the
more junior residents and medical students, and those involved both compliment and criticize the
medical treatment that had been performed. It is meant to be a learning process. Dr. Criner
chose 12 cases for this fracture conference, most of which involved procedures that he believed
had poor outcomes or were otherwise controversial. Dr. Criner believed those type of cases
provided the best opportunity for learning. Dr. Criner chose three cases in which Dr. Richard
Stanley had performed the procedures. Of the 12 cases Dr. Criner had selected, he was only able
to present eight before he had to end the conference because of time constraints. He and Natkin
were the only senior residents able to attend this conference. Dr. Criner attests that Natkin asked

only appropriate questions and that Dr. Stanley’s name was never mentioned.
After this conference, on October 1, 2013, Natkin was directed to meet with Vela and two
other management personnel. Vela accused Natkin of “colluding” with Dr. Criner to present
cases at the fracture conference to make Dr. Stanley “look bad.” Unbeknownst to Natkin until
near the end of the meeting, Dr. J. Michael Finley, D.O. (Finley), Chief Academic Officer of
OPTI-West during the relevant period, was attending the meeting by telephone. When asked his
opinion on the matter, Finley questioned Natkin’s professionalism and stated that residents must
behave in a professional manner. Natkin was then suspended pending further investigation and a
meeting of the Graduate Medical Education (GME) Committee. On October 7, 2013, Good Sam
terminated Natkin’s medical residency.
Dr. Criner states that no one involved in the disciplinary process of Natkin interviewed
Dr. Criner about the fracture conference until after Natkin was terminated. Dr. Criner also
describes his experience after leaving Good Sam, which includes teaching residents. He explains

that Natkin’s conduct at the fracture conference should not have resulted in any discipline, let
alone being fired from his residency. He explains what he perceives as the problems with Good
Sam and SHS’s disciplinary process of Natkin and that OPTI-West should have enforced proper
due process but failed to do so.
Dr. Todd Lewis, MD, who was a medical staff member at Good Sam for 32 years,
including as Chief of Staff, Chief of Surgery, and Chief of Orthopedics, also submitted a
declaration in support of Plaintiffs. Dr. Lewis explains that he was a faculty member of the
orthopedic residency program at Good Sam and is familiar with the program’s procedures and
policies. Dr. Lewis explains what he considers to be the deficiencies in the process provided to

Natkin and the lack of an underlying basis for disciplinary action.
Natkin appealed his termination to the hospital, following the grievance policy of the
hospital. The first level appeal was to the hospital. Vela appointed the appeal committee, which
consisted of three members of the GME Committee (the committee that had voted to terminate
Natkin). Vela and Finley also attended the appeal committee hearing. Minutes from the hearing
reflect that one appeal committee member expressed concern that Natkin had not received
sufficient process. Finley then stated that the appeal committee should view Natkin’s appeal
through an “academic lens” and consider whether Natkin followed the program, whether
“evaluations and notifications [were] done, [and] was roadmap followed[.]” ECF 268-5 at 23.
Finley emphasized that Natkin was “not an employee, but resident following learning plan” and
that “academic law is a shortened process. Most medical staff issues have a long process because
you are talking about a physician in practice. A student gets the mark or does not.” Id. After that,
the meeting wrapped up and the committee decided to meet the next day to make its final
decision. The next day the committee affirmed the termination of Natkin’s residency.

According to Natkin, the hospital’s Grievance Policy provides that after appealing to the
hospital, a student may appeal to OPTI-West, and then to AOA. The parties did not provide the
Court with a copy of the referenced Grievance Policy. The AOA’s Basic Documents for Post-
Doctoral Training, which is the model for residency programs, however, provides in its
grievance procedure section that appeals to AOA may not be filed until after a resident or
medical student first tries to resolve the problem with the hospital, base institution (which, here,
is Western University of Health Sciences), or OPTI-West. Natkin states that he believed
appealing to OPTI-West would be futile because Finley had already expressed his opinion about
Natkin’s situation. Still, Natkin asked AOA whether he should take the intermediate step and

appeal to OPTI-West. After AOA confirmed that Natkin need not take that step, Natkin appealed
directly to AOA. AOA affirmed Natkin’s termination.
DISCUSSION
A. Challenges Unrelated to the Merits
Plaintiffs make several arguments unrelated to the merits of OPTI-West’s motion.
Plaintiffs argue that OPTI-West did not properly confer under Local Rule 7-1(a)(2) because
OPTI-West did not describe each claim and argument of the summary judgment motion. The
Court finds that OPTI-West sufficiently conferred for purposes of this motion.
Plaintiffs also raise many evidentiary objections. The objection to the declaration of Dan
Miulli, D.O., is well taken. Plaintiffs point out that Dr. Miulli was not disclosed as potential
witness in OPTI-West’s initial disclosures. OPTI-West responds that Dr. Miulli was hired after
OPTI-West made its initial disclosures. OPTI-West, however, must supplement its initial
disclosures under Rule 26(e)(1) of the Federal Rules of Civil Procedure.3 This error is harmless,
however, because OPTI-West provides the same information through a supplemental exhibit of
Finley.

Plaintiffs’ remaining objections go the admissibility of the form of the submitted
evidence. In evaluating facts offered at summary judgment, the Court does “not focus on the
admissibility of the evidence’s form. [The Court] instead focus[es] on the admissibility of its
contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Sandoval v. Cnty. of
San Diego, 985 F.3d 657, 665-66 (9th Cir. 2021) (rejecting relevance, hearsay, and foundation
evidentiary objections at summary judgment and noting that “[i]f the contents of a document can
be presented in a form that would be admissible at trial—for example, through live testimony by
the author of the document—the mere fact that the document itself might be excludable hearsay
provides no basis for refusing to consider it on summary judgment”). At summary judgment, the

Court may consider “evidence submitted in an inadmissible form, so long as the underlying
evidence could be provided in an admissible form at trial, such as by live testimony.” JL
Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016); see also
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 964 n.7 (9th
Cir. 2011) (“Rule 56 is precisely worded to exclude evidence only if it’s clear that it cannot be
presented in an admissible form at trial.”); cf. Fed. R. Civ. P. 56(c)(2) (permitting a party to
“object that the material cited to support or dispute a fact cannot be presented in a form that

3 Going forward, however, Plaintiffs are now on notice that Dr. Miulli is a potential
witness.
would be admissible in evidence”). Plaintiffs do not object under Rule 56(c)(2) that the material
cited cannot be presented in a form that would be admissible at trial. Thus, the Court overrules
the evidentiary objections. The Court will only consider evidence appropriate for consideration
at summary judgment.
Finally, Plaintiffs move under Rule 56(d) of the Federal Rules of Civil Procedure that the

Court delay or defer ruling on OPTI-West’s motion until Plaintiffs can take additional discovery.
Because the Court finds that Plaintiffs have raised a genuine dispute of material fact based on the
current record before the Court, the Court denies Plaintiffs’ motion under Rule 56(d) as moot.
B. Whether the Decision was Academic or Disciplinary
OPTI-West’s first argument is that Plaintiffs’ claims are barred by the Supreme Court’s
decisions in Horowitz and Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985).
For purposes of this motion, the Court assumes without deciding that Horowitz and Ewing could
potentially apply to Natkin’s termination.4

4 There are several concerns with the potential applicability of Horowitz and Ewing. First,
the Supreme Court in these cases analyzed whether the institutions provided “at least as much
due process as the Fourteenth Amendment requires.” Horowitz, 435 U.S. at 85. Here, however,
Plaintiffs’ claims arise under state tort law. Second, these cases involve “Judicial interposition in
the operation of the public school system of the Nation.” Horowitz, 435 U.S. at 91 (quoting
Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). Good Sam is a private institution. Third, these
cases involve medical students, and Natkin was a resident. There is a meaningful difference, as
OPTI-West’s own contract with SHS describes. For example, OPTI-West required SHS to
“employ” residents, and to provide residents with “salaries, health insurance, worker’s
compensation insurance, professional liability insurance, disability insurance, applicable taxes
and other fringe benefits, including a Continuing Medical Education expense allocation.” ECF
279-1 at 5-6. These are requirements more aligned with a status as an employee rather than as a
mere student. In contrast, SHS did not “employ” medical students and was expressly prohibited
from compensating students or providing them with benefits. Id. at 7-8. SHS was only allowed to
ensure that students were covered by professional liability insurance. Id. at 8. Because the Court
concludes that Horowitz and Ewing do not apply to the particular circumstances of Natkin’s
termination, the Court need not decide this threshold legal question at this stage of the litigation.
Horowitz recognized the distinction between “misconduct” and “failure to attain a
standard of excellence in studies.” 435 U.S. at 87 (quoting Barnard v. Inhabitants of
Shelburne, 216 Mass. 19, 102 N.E. 1095 (1913)). The Supreme Court in Horowitz contrasted
“[a]cademic evaluations of a student” with “disciplinary determinations” in terms of the amount
of process needed, because academic decisions are by their “nature more subjective and

evaluative than the typical factual questions presented in the average disciplinary decision.” Id.
at 89-90. The Supreme Court explained:
[We have] concluded that the value of some form of hearing in a
disciplinary context outweighs any resulting harm to the academic
environment. Influencing this conclusion was clearly the belief that
disciplinary proceedings, in which the teacher must decide whether
to punish a student for disruptive or insubordinate behavior, may
automatically bring an adversary flavor to the normal student-
teacher relationship. The same conclusion does not follow in the
academic context.
Id. at 90.
OPTI-West repeatedly describes SHS and Good Sam’s process with Natkin as a
“disciplinary” process. OPTI-West also quotes the “Discipline Involving Residents and
Students” clause in its contract with SHS to support its argument that SHS and not OPTI-West
had the authority to make the disciplinary decision about Natkin. Yet in asserting that Horowitz
and Ewing apply to bar Plaintiffs’ claims, OPTI-West argues that the decision was academic, and
not disciplinary.
Viewing the facts in the light most favorable to Plaintiffs, as the Court must do when
considering OPTI-West’s motion for summary judgment, the Court finds that there is at least a
genuine issue of fact as to whether the decision was academic or disciplinary. Natkin was called
to a meeting shortly after the fracture conference and the meeting was about Natkin’s alleged
conduct at the fracture conference of purportedly “colluding” with another resident to make an
attending physician look bad. Natkin was suspended at that meeting and his medical residency
was terminated a few days later. Dr. Lewis describes that Natkin’s file does not show any other
disciplinary or academic problems, let alone any that would support termination. Natkin also
disputes statements made by Vela regarding Natkin’s purported history, including that he
previously had been put on probation. Further, there is no documentation in the record showing

that Natkin had been put on probation. It is a reasonable inference, therefore, that he was
suspended and terminated as discipline for his alleged misconduct at the fracture conference.
OPTI-West argued at the hearing on the pending motion that the process was disciplinary
for SHS but academic for OPTI-West, because OPTI-West serves the role of an academic
advisor to SHS. The Court rejects this argument. The process was either disciplinary or
academic—it did not have a different character for Finley as he attended the meetings and appeal
hearings and a separate character for all other attendees. Whatever OPTI-West’s contracted role,
if Finley chose to participate in a disciplinary process, he was participating in a disciplinary
process, and it did not change to an academic process only for him because OPTI-West generally

plays a role in the academic aspects of SHS.
If the process through which Natkin was terminated was disciplinary, Horowitz and
Ewing do not apply. See Horowitz, 435 U.S. at 89-90. Because there is a genuine of issue of fact
whether the process was disciplinary, OPTI-West’s argument that these cases bar Plaintiffs’
claims is rejected at this stage of the litigation.
C. Oregon’s Common Law Right to Fair Procedure
OPTI-West argues that it is entitled to summary judgment because it did not owe any fair
procedure to Natkin, and because even if it did, it did not violate his right to fair procedure. The
right to fair procedure does not require a fiduciary duty in the traditional sense, but requires
organizations that have the “practical power . . . to affect substantially an important economic
interest.” Ezekial v. Winkley, 20 Cal. 3d 267 (1977). These interests include licenses such as
dental and medical licenses, or unions that can preclude all employment in a field. Heath v.
Redbud Hosp. Dist., 620 F.2d 207, 210 (9th Cir. 1980).
There is sufficient evidence in the record to raise a genuine issue of fact as to whether
OPTI-West had the practical power substantially to affect Natkin’s ability to get a Board

certified specialty in orthopedic surgery. OPTI-West helped draft the policies and procedures
that SHS and Good Sam used to discipline Natkin. OPTI-West also was responsible for ensuring
that SHS and Good Sam complied with AOA’s requirements, as well as other legal and licensing
requirements. OPTI-West’s 2012 contract with Good Sam provides that OPTI-West will perform
oversight over the quality of Good Sam’s program for AOA’s accreditation purposes, including
performing reviews of the program, collecting and reporting data, and having oversight over
corrective action plans to correct deficiencies. OPTI-West’s 2008 contract with SHS provides
similar oversight.
Indeed, OPTI-West could begin a process that would result in SHS and its affiliated

hospitals no longer being able to recruit residents and medical students. Additionally, although
the 2008 contract provides that discipline involving residents and students shall be in the “sole
opinion” of SHS, the contract also requires that any investigation and disciplinary proceedings
must be conducted pursuant to “applicable statutory, procedural, or common law rule as outlined
in the OPTI-West approved resident contract.” Further, OPTI-West was responsible to ensure
that SHS and Good Sam followed all applicable rules and laws.
OPTI-West could affect SHS and Good Sam’s accreditation and status as a teaching
hospital. OPTI-West also had oversight over whether SHS and Good Sam complied with the
applicable rules and laws when conducting disciplinary investigations and proceedings. It is thus
a reasonable inference that OPTI-West had substantial influence over SHS and Good Sam and
Finley’s participation and comments in Natkin’s disciplinary process would have substantial
sway, even though under the contract, SHS makes disciplinary decisions on its own.
OPTI-West also is involved on the resident-side of the equation. OPTI-West is the entity
to whom residents file their second-level appeal after appealing to the hospital. OPTI-West thus

has a direct role in providing residents potential recourse when their license or specialization is
on the line. This also supports the inference that OPTI-West has the practical power to affect the
substantial economic interest of residents. Here, Natkin believed it would be futile to appeal to
OPTI-West because Finley had repeatedly expressed his opinion about Natkin’s situation, both
in the initial meeting and at the appeals hearing. Natkin asked AOA whether he should
nonetheless appeal to OPTI-West and AOA had Natkin skip that step and appeal directly to
AOA. That Natkin did not appeal to OPTI-West does not detract from OPTI-West’s role and its
practical power to affect Natkin’s economic interest. Natkin did not take advantage of OPTI-
West as a direct appeal because Natkin believed Finley to be too biased.

OPTI-West also argues that even if it did have the requisite duty, or practical power,
Finley was merely a neutral observer making factual statements. Plaintiffs provide sufficient
evidence at this stage, viewing the facts in the light most favorable to Plaintiffs, to raise a triable
issue regarding Finley’s conduct in the asserted deprivation of Natkin’s right to fair procedure.
Plaintiffs contend that: (1) OPTI-West admitted that it receives copies of complaints before they
get elevated to AOA and must assess the allegations; (2) OPTI-West did not produce any
documents demonstrating that SHS notified OPTI-West about issues with any other resident but
SHS shared many details about Natkin’s situation with OPTI-West before key meetings;
(3) Finley sat in on all the disciplinary meetings involving Natkin; (4) Finley specifically
commented on Natkin’s “lack of professionalism” during the first meeting; and (5) Finley
suggested to the appeals committee that Natkin did not need any added process when the appeals
committee was questioning whether Natkin received adequate process. The appeals committee
then adjourned, and the next day the appeals committee affirmed Natkin’s dismissal. Plaintiffs
also provide the declaration of Dr. Lewis, who states that Nakin was not provided sufficient

process and that SHS and Good Sam failed to follow their own procedures, and Dr. Criner, who
states that OPTI-West failed in its duty to ensure that proper process was followed in the
discipline of Natkin.
Finley told the appeals committee that the process was academic, when it may have been
disciplinary, that Natkin was not an employee, even though the OPTI-West contract requires that
SHS and Good Sam “employ” residents, and that the process for Natkin was “shortened.” Finley
essentially told the appeals committee that Natkin did not require any further process. Given this
level of participation, along with the other evidence of OPTI-West’s role, Natkin has raised
factual issues for the jury as to whether OPTI-West deprived Natkin of fair process by its role in

the disciplinary process.
D. Intentional Interference with Contract
OPTI-West argues that Plaintiffs cannot show that OPTI-West “intentionally” interfered
with Natkin’s contracts, that the interference was causally connected to any harm to the
contractual relationship or economic advantage, or that OPTI-West acted through an improper
means or with an improper purpose. These arguments are based on OPTI-West’s position that
Finley was merely a passive observer sitting on the phone who played no role in Natkin’s
termination. The Court, however, has rejected this argument, finding triable issues regarding
Finley’s role in the deprivation of Natkin’s right to fair procedure. This also provides both the
“improper means” element and the intentionality required for this tort. Thus, the Court denies
OPTI-West’s motion on this claim.
CONCLUSION
The Court DENIES OPTI-West’s motion for summary judgment, ECF 261.
IT IS SO ORDERED.

DATED this 23rd day of January, 2023.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395557. Public record. Not legal advice.