Hofer v. OHSU

603

Argued and submitted December 31, 2020; affirmed May 18; petition for review

allowed, decision of Court of Appeals vacated, and case remanded to Court of

Appeals for reconsideration in light of Lowell v. Medford School Dist. 549C, 370

Or 79, 515 P3d 359, September 16, 2022 (370 Or 214)

Linda Sue HOFER,

Plaintiff-Appellant,

v.

OREGON HEALTH AND SCIENCE UNIVERSITY,

Defendant-Respondent.

Multnomah County Circuit Court

18CV14839; A172328

511 P3d 414

Plaintiff sued Oregon Health and Science University (OHSU) for damages

that she alleges she sustained after two of its physicians typed false statements

into her medical record. Plaintiff sought recovery under two legal theories: def-

amation and medical negligence. The trial court concluded, on OHSU’s motions

for summary judgment, that OHSU was entitled to prevail (1) on plaintiff’s

defamation claims because those claims were barred by absolute privilege and

(2) on her medical negligence claim because there were “insufficient facts to

prove a basis” for that claim. On appeal, plaintiff assigns error to the trial court’s

granting of OHSU’s summary judgment motions. As to the defamation claim,

plaintiff argues that an issue of material fact exists as to whether her physicians

were acting within the scope of their duties when they entered the notes at issue

into plaintiff’s medical records. As to the negligence claim, plaintiff argues that,

as a patient, she has a “legally protected interest in the accuracy of her medical

records,” and, therefore, the trial court erred when it granted OHSU’s summary

judgment motion on that claim. Held: The evidence was insufficient to raise a

genuine issue of fact regarding whether the physicians were carrying out their

official duties. Therefore, OHSU was entitled to prevail on its absolute privilege

defense. Additionally, plaintiff failed to develop or support her argument that

she had a legally protected interest in the accuracy of her medical records that

was sufficient to provide an exception to the physical injury rule that applies in

negligence cases. Plaintiff also failed to introduce evidence establishing that her

physicians had a specific duty to maintain accurate patient records for the spe-

cific purpose of protecting patients from emotional harm.

Affirmed.

Christopher A. Ramras, Judge.

David Wallace argued the cause for appellant. Also on

the brief was Wallace Law Firm.

Janet M. Schroer argued the cause for respondent. Also

on the brief were Holly E. Pettit and Hart Wagner LLP.

604 Hofer v. OHSU

Before Mooney, Presiding Judge, and Pagán, Judge, and

DeVore, Senior Judge.*

MOONEY, P. J.

Affirmed.

______________

* Pagán, J., vice DeHoog, J. pro tempore.

Cite as 319 Or App 603 (2022) 605

MOONEY, P. J.

Plaintiff sued Oregon Health and Science University

(OHSU) for damages that she alleges she sustained after

two of its employed physicians typed false statements into

her medical record, which is maintained by OHSU in its

electronic health records (Epic EHR) database. The state-

ments in question include that plaintiff “obtained dupli-

cate prescriptions, breached a medication contract and lied

about methadone prescriptions.” Plaintiff sought recovery

under two legal theories: defamation and medical negli-

gence.1 The trial court concluded, on OHSU’s motions for

summary judgment, that OHSU was entitled to prevail

(1) on plaintiff’s defamation claims because those claims

were barred by absolute privilege and (2) on her medical neg-

ligence claim because there were “insufficient facts to prove

a basis” for that claim. Plaintiff appeals from the general

judgment dismissing her claims, assigning error to the trial

court’s granting of OHSU’s summary judgment motions. For

the reasons that follow, we conclude that absolute privilege

bars plaintiff’s defamation claim and that the trial court did

not err in dismissing plaintiff’s negligence claim because no

issue of material fact exists with respect to that claim and

OHSU is entitled to prevail. We, therefore, affirm.

FACTUAL BACKGROUND

In reviewing the trial court’s summary judgment

ruling, we view the record in the light most favorable to the

nonmoving party—here, plaintiff—resolving all reasonable

inferences in her favor. Jennewein v. MCIMetro Access

Transmission Services, 308 Or App 396, 400, 481 P3d 939

(2021). The relevant facts are not in dispute, and we state

them in accordance with the standard of review.

Plaintiff has a movement disorder known as rest-

less leg syndrome (RLS). When she lived in the State of

Washington, her physician treated her RLS with methadone.

1

Plaintiff’s first claim for relief against OHSU alleges defamation and

defamation per se based upon statements made by Dr. MacDonald. Plaintiff’s

second claim for relief against OHSU alleges defamation and defamation per se

based upon statements made by Dr. Bernard. Plaintiff’s third claim for relief

against OHSU alleges medical negligence based upon the acts and omissions of

MacDonald and Bernard.

606 Hofer v. OHSU

After moving from Washington to Oregon, plaintiff sought

to establish care with an Oregon physician who would be

willing to continue that same course of treatment. To that

end, plaintiff saw Dr. MacDonald, a physician in the third

year of her residency training program at OHSU’s neurology

clinic. MacDonald provided plaintiff with a prescription for

a one-month supply, followed by a prescription for a three-

month supply, of methadone to allow her time to establish a

permanent relationship with a physician who would assume

care of her RLS. Plaintiff subsequently met with a different

physician, who agreed to continue the methadone treatment

if plaintiff would provide a urine sample and sign a med-

ication contract. Plaintiff was unable to give a urine sam-

ple and she left the appointment. She did not return to that

clinic.

Plaintiff returned to defendant’s neurology clinic

on May 24, 2017, approximately nine months after her first

visit there, and again saw MacDonald. MacDonald declined

to prescribe additional methadone for plaintiff at that time

and documented the medical encounter in plaintiff’s medi-

cal record as follows:

“I have not seen [plaintiff] since her August 2016 initial

visit, at which time I gave her a three month prescription

for methadone. I gave her another 3 month prescription in

December, at which time I told her it was possible that I

would not be able to continue filling the prescription given

the limitations to my clinic schedule, but that I would con-

tinue to explore options. I have not heard from her since

that time until she appeared in my clinic today.

“In December, she established care with a new PCP in the

family medicine clinic at Gabriel Park, who was willing to

take on prescription of her methadone. She was seen on

3/10, at which time she signed a medication contract and

was asked to take a urine test. She did not complete the

urine test and refused to return to take the test on another

day (per my discussion with her PCP, became irate and left

the clinic suddenly), and therefore her care was terminated

with that physician.

“In my clinic today, she appeared highly anxious. She did

not make eye contact with me and answered pleasantries

and preliminary history questions with one word answers.

Cite as 319 Or App 603 (2022) 607

I probed a bit as to why she was in my clinic now after

having been lost to follow up for several months. She stated

that she was here for methadone prescription. I asked if

she had seen any other doctors for prescriptions, and she

said no. I asked specifically about the family medicine

clinic, where it seemed she had a willing provider, and

she initially said that her PCP there had left and there-

fore couldn’t prescribe the methadone, which was why she

didn’t obtain the prescription there. I felt that if not an out-

right lie (indeed, her PCP would be leaving at the end of

the year), this was certainly a misleading response. When

I told her that I had spoken to that doctor, she eventually

stated that her PCP asked her to provide a urine sample,

and she was unable to because she had just used the bath-

room. She felt it was undue hardship to come back because

the drive was too far. She specifically stated that the rea-

son she did this was because she already had an appoint-

ment with me. However, mychart documentation does not

corroborate this, and in fact, her appointment with me was

not scheduled until 4/12.

“Her behavior is very concerning to me - despite telling me

that no one has been willing to prescribe for her, she did

in fact have a willing prescriber for methadone, the bar-

rier to which was her unwillingness to complete a urine

test. Although by history and chart review she does seem

to have a reasonable indication for methadone, I am unwill-

ing to continue to prescribe this for her at this time in

light of her behavior. Her behavior both outside my clinic

as well as in my office today demonstrates numerous red

flags (which she did not exhibit at our initial visit), and

I think she requires a prescriber with more experience

with medication contracts. I offered her several other non-

narcotic medication options which are approved for treat-

ment of RLS, which she declined. She left very shortly

thereafter in the middle of our conversation.”

MacDonald’s attending physician, Dr. Bernard, reviewed the

May 24, 2017, encounter as part of her supervisory role in

MacDonald’s residency training program and she, in turn,

documented the following in plaintiff’s medical chart:

“I personally interviewed the patient, performed the perti-

nent parts of the physical examination and personally for-

mulated the plan with the resident [(MacDonald)]. I agree

with the resident[’]s documentation and have documented

608 Hofer v. OHSU

any additions or exceptions. The patient has broken trust

with another clinic at OHSU regarding methadone mainte-

nance, and obtained duplicate prescriptions, and then left

our clinic precipitously. She will not be rescheduled due to

severance of trust and contract with providers.”

Bernard later corrected that note by removing the language

that said that she had “personally” evaluated plaintiff and

“performed” parts of the exam because, in fact, she had not

done so. She also acknowledged in deposition testimony that

it was incorrect to have stated that plaintiff had obtained

“duplicate prescriptions.”

Plaintiff ultimately moved back to Washington in

order to obtain care and treatment of her movement disor-

der from her previous Washington physician.

PROCEDURAL BACKGROUND

Plaintiff filed this lawsuit in April of 2018. A round

of ORCP 21 A pleading motions was filed and litigated,

including one that sought dismissal of the medical neg-

ligence claim on the grounds that plaintiff had not stated

facts sufficient to constitute such a claim. The court granted

OHSU’s ORCP 21 A motion, noting its view that

“[f]rankly, in this case, at least thus far, I don’t think the

complaint is sufficient to allege that there was a standard of

care that included a duty to protect against psychic harm.

And I don’t think the claim alleges any clear cut psycholog-

ical harm that was suffered by the Plaintiff.”

The court gave plaintiff leave to amend her complaint,

which she did. OHSU filed an answer generally denying

wrongdoing and raising several affirmative defenses includ-

ing, among others, failure to state facts sufficient to consti-

tute a negligence claim and, with respect to the defamation

claims, absolute privilege.

OHSU filed its first motion for summary judgment

raising notice issues under the Oregon Tort Claims Act2

and seeking dismissal of the medical negligence claim for

lack of sufficient facts to support that claim. The trial court

granted summary judgment in favor of OHSU and against

2

Notice under the Oregon Tort Claims Act is not before us.

Cite as 319 Or App 603 (2022) 609

plaintiff on the negligence claim “because there are insuf-

ficient facts to prove a basis for Plaintiff’s claims.” OHSU

filed another motion for summary judgment arguing that

(1) the allegedly defamatory statements entered into plain-

tiff’s medical record are subject to absolute privilege and

(2) plaintiff could not “establish the requisite elements of a

claim for defamation.” The court granted that motion on the

basis of absolute privilege. Final judgment was entered, and

this appeal followed.

THE DEFAMATION CLAIMS

Plaintiff claims that statements contained within

MacDonald’s and Bernard’s post-visit notes are false and

defamatory, and that those notes were “entered and pub-

lished” into her medical record, which is maintained by

OHSU in its Epic EHR database, where those notes are

available to be seen by healthcare providers who query that

system in relationship to providing care and treatment for

plaintiff. OHSU asserts that it is a part of state govern-

ment, that MacDonald and Bernard are its employees and

therefore government officials, that they wrote the post-visit

notes within the course and scope of their duties as govern-

ment officials for the purpose of documenting the delivery

of healthcare services to plaintiff and that, as such, OHSU

is protected from liability for the statements contained in

those notes by the doctrine of absolute privilege.3

A party against whom a claim is asserted “may * * *

move * * * for a summary judgment in that party’s favor as

to all or any part of any claim or defense.” ORCP 47 B. In

the face of such a motion, the nonmoving party has “the bur-

den of producing evidence on any issue raised in the motion

as to which [she] would have the burden of persuasion at

trial.” ORCP 47 C; Two Two v. Fujitec America, Inc., 355 Or

319, 324, 325 P3d 707 (2014). Because absolute privilege is

an affirmative defense on which OHSU would have the bur-

den of persuasion at trial, OHSU has the burden on sum-

mary judgment to establish facts showing that the privilege

3

Oregon recognizes the defenses of qualified privilege and absolute privilege

in defamation claims. DeLong v. Yu Enterprises, Inc., 334 Or 166, 170, 47 P3d 8

(2002). OHSU, however, does not claim that qualified privilege applies and we,

therefore, address only the question of the applicability of absolute privilege.

610 Hofer v. OHSU

applies, and that OHSU is entitled to prevail as a matter of

law. ORCP 47 C; Mouktabis v. A. M., 315 Or App 22, 25, 500

P3d 32 (2021).

Absolute privilege generally applies in governmen-

tal settings to statements made by public officials in the

course of their public duties. Lowell v. Medford School Dist.

549C, 313 Or App 599, 604-05, 497 P3d 797, rev allowed,

368 Or 702 (2021). The defense of absolute privilege acts

as a complete bar to liability for defamation. Johnson v.

Brown, 193 Or App 375, 380, 91 P3d 741 (2004). The priv-

ilege is intended to ensure “the unhampered operation of

the government,” Wallulis v. Dymowski, 323 Or 337, 349, 918

P2d 755 (1996), and to promote the public welfare, Grubb

v. Johnson et al, 205 Or 624, 631-32, 289 P2d 1067 (1955).

Absolute privilege is based on the premise that it is more

important to encourage public officials to speak freely in the

discharge of their official duties than it is to allow individ-

uals to sue public officials for defamatory statements that

public officials may make in that context. As Judge Learned

Hand put it:

“It does indeed go without saying that an official, who

is in fact guilty of using his powers to vent his spleen upon

others, or for any other personal motive not connected with

the public good, should not escape liability for the injuries

he may so cause; and, if it were possible in practice to con-

fine such complaints to the guilty, it would be monstrous

to deny recovery. The justification for doing so is that it is

impossible to know whether the claim is well founded until

the case has been tried, and that to submit all officials, the

innocent as well as the guilty, to the burden of a trial and

to the inevitable danger of its outcome, would dampen the

ardor of all but the most resolute, or the most irresponsi-

ble, in the unflinching discharge of their duties. Again and

again the public interest calls for action which may turn

out to be founded on a mistake, in the face of which an offi-

cial may later find himself hard put to it to satisfy a jury of

his good faith. * * *”

Gregoire v. Biddle, 177 F2d 579, 581 (2d Cir 1949), cert den,

339 US 949 (1950).

The trend of Oregon’s judicial decisions over the

past 100 years has been to apply absolute privilege in an

Cite as 319 Or App 603 (2022) 611

increasingly broad fashion. Our state legislators have always

enjoyed absolute privilege for statements made in the course

of their legislative duties, and we have extended that priv-

ilege to official members of lesser legislative bodies. For

example, in extending absolute privilege to a member of a

port commission, the Oregon Supreme Court explained that

“Oregon prides itself on its citizen participation.” Noble v.

Ternyik, 273 Or 39, 43, 539 P2d 658 (1975). “Uncompensated

citizens, serving at least in part to fulfill their civic respon-

sibility, comprise the vast bulk of numerous legislative

bodies in Oregon,” and public bodies do not meet privately,

but rather in the open as required by the Oregon pub-

lic meetings law. Id. at 43-44. Without absolute privilege,

there would likely be fewer citizens willing to participate.

Id. at 44.

Absolute privilege applies to statements made by

judges, jurors, attorneys, and witnesses so that they may

“speak their minds freely and exercise their respective func-

tions without incurring the risk of a criminal prosecution

or an action for the recovery of damages.” Moore v. Sater

et al, 215 Or 417, 420, 335 P2d 843 (1959). The application of

absolute privilege to statements made by attorneys in plead-

ings or in open court in the course of litigation was extended

beyond pleadings and open court to other statements made

by attorneys that are “pertinent” to litigation or “a judicial

proceeding.” Chard v. Galton, 277 Or 109, 112, 559 P2d

1280 (1977). And it has been applied to statements made to

administrative bodies in the absence of an actual judicial or

quasi-judicial proceeding. Ramstead v. Morgan, 219 Or 383,

394, 347 P2d 594 (1959).

Absolute privilege has been applied to statements

made by “inferior as well as high-ranking” executive branch

officers in the course of their official duties. Shearer v.

Lambert, 274 Or 449, 454, 547 P2d 98 (1976). That privi-

lege has been specifically applied to statements made by

police officers in the course of their official duties. See, e.g.,

Chamberlain v. City of Portland, 184 Or App 487, 491, 56 P3d

497 (2002) (applying absolute privilege to memorandum by

police sergeant documenting conduct of police officer at con-

ference); Sandrock v. City of Corvallis, 58 Or App 312, 315,

612 Hofer v. OHSU

648 P2d 382, rev den, 293 Or 634 (1982) (applying absolute

privilege to statements in which a police captain communi-

cated defamatory material to detectives in the course of his

official duties). And in Christianson v. State of Oregon, 239

Or App 451, 459, 244 P3d 904 (2010), rev den, 350 Or 297

(2011), we applied absolute privilege to statements made by

a Department of Human Services (DHS) supervisor about

a former employee who was applying for a new job with

DHS. Most recently, we have applied absolute privilege to

claims against a public school district arising out of a state-

ment made by a district employee, a theater technician, to

his supervisor, that he had observed the plaintiff, who had

been providing piano tuning services to the district, to be

intoxicated on school premises in violation of district policy.

Lowell, 313 Or App at 604-05.

We now turn to the question of whether the trial

court erred in concluding that, on the record before it, abso-

lute privilege applies to statements made by MacDonald and

Bernard in their post-visit chart notes concerning plaintiff.

The legislature established OHSU as a public corporation,

to act as a governmental entity, with the mission of carry-

ing out the statewide functions of “education, research, and

delivery of healthcare.” Clarke v. OHSU, 206 Or App 610,

621-22, 138 P3d 900 (2006), aff’d, 343 Or 581, 175 P3d 418

(2007). OHSU “[e]ngage[s] in the provision of inpatient and

outpatient clinical care and health care delivery systems

throughout the state[.]” ORS 353.030(3)(c). OHSU presented

evidence that MacDonald and Bernard, as OHSU-employed

physicians, deliver healthcare to patients and also function

as part of OHSU’s educational mission through the resi-

dency program. It presented Bernard’s declaration as evi-

dence that residents, like MacDonald, who see patients at

OHSU’s neurology clinic “are responsible for taking a med-

ical history, performing a physical exam, and summariz-

ing the visit and the medical care provided to the patient

in the patient’s electronic medical record.” It also presented

evidence that an attending physician, such as Bernard,

is “responsible for supervising the resident’s exam of the

patient, reviewing the patient’s medical history and chart

notes, including chart notes completed by the residents, and

preparing [the attending physician’s] own documentation in

Cite as 319 Or App 603 (2022) 613

the patient’s electronic medical record reflecting [his or her]

involvement and assessment related to the patient’s care.”

Plaintiff relies on Clifford v. City of Clatskanie, 204

Or App 566, 131 P3d 783, rev den, 341 Or 216 (2006), to

argue that triable issues remain as to whether MacDonald

and Bernard were authorized to include statements in

plaintiff’s medical record that amounted to false reports of

“prescription fraud and the crime of obtaining duplicate pre-

scriptions.” Plaintiff, thus, argues that an issue of material

fact exists as to whether the physicians were acting within

the scope of their official duties when they entered those

notes into plaintiff’s medical record. In Clifford, as here, the

defendant bore the burden to produce some evidence that

the officer’s statements—the disclosure of a 9-1-1 caller’s

identity—were made “during the performance of his official

duties.” Id. at 580. Because he did not produce such evidence,

a material issue of fact remained as to the applicability of

the defendant’s absolute privilege defense. Id. In contrast,

OHSU presented evidence in the form of a declaration from

Bernard that described, in part, the roles of resident phy-

sicians and attending physicians working in OHSU’s neu-

rology residency training program, specifically including

(1) the resident’s official duty to summarize and document

the medical care provided to the patient in the patient’s med-

ical record, and (2) the attending physician’s official duty to

complete her own documentation in the patient’s medical

record reflecting her “involvement and assessment related

to the patient’s care.” Plaintiff did not, however, respond by

offering evidence sufficient to raise an issue of fact as to

whether the post-visit notes concerning the care provided to

plaintiff, or any part of those notes, were made outside the

scope of MacDonald’s or Bernard’s official duties.

To avoid summary judgment after OHSU produced

evidence that the notes were entered as part of each phy-

sician’s respective role in delivering healthcare services

to plaintiff—prima facie evidence that absolute privilege

applies—plaintiff needed to have come forward with evi-

dence that the physicians did not enter their respective

notes within the course of their official duties. Plaintiff

did, of course, offer evidence through Bernard’s deposition

614 Hofer v. OHSU

testimony that Bernard’s note incorrectly states that she

personally saw plaintiff and that plaintiff “obtained dupli-

cate prescriptions.” But the fact that Bernard’s note was

incorrect in those respects does not raise an issue of fact

about whether the physicians were carrying out their offi-

cial duties when they created and entered the post-visit

notes.4

There is evidence that MacDonald and Bernard

were carrying out their official duties delivering healthcare

to plaintiff at OHSU, a public corporation providing state-

wide healthcare services and education as a part of state

government. There is evidence that, as a part of the delivery

of healthcare services to plaintiff, MacDonald and Bernard

had a duty to, and did, summarize the care they provided to

her and entered those summaries into her medical record.

There is no evidence that raises a genuine issue about

whether McDonald or Bernard were carrying out their offi-

cial duties in doing so and on this record, OHSU is entitled

to prevail on its absolute privilege defense. The trial court

did not err in granting summary judgment to OHSU on the

defamation claim.

THE MEDICAL NEGLIGENCE CLAIM

We turn to the trial court’s order granting summary

judgment on plaintiff’s negligence claim in favor of OHSU.

As noted, we view the record in the light most favorable to

plaintiff, resolving all reasonable inferences in her favor.

Jennewein, 308 Or App at 400. Summary judgment is to be

granted only when there are no genuine issues of material

fact, and the moving party is entitled to prevail as a matter

of law. ORCP 47 C.

As a preliminary matter, OHSU raises a preserva-

tion argument that we reject. OHSU raised the legal suffi-

ciency of the facts supporting plaintiff’s negligence claim in

its motion for summary judgment and, having opposed that

4

We note that the ORCP 47 E affidavit submitted by plaintiff’s counsel was

submitted in opposition to OHSU’s motion for summary judgment on plaintiff’s

medical negligence claim. She did not argue in the trial court that that affidavit

raises a material issue with respect to the application of absolute privilege and

we do not understand her to make that argument on appeal.

Cite as 319 Or App 603 (2022) 615

motion in the trial court, plaintiff placed the matter squarely

at issue, preserving her arguments for appeal. However, to

the extent that plaintiff now argues that the court should

have granted her leave, sua sponte, to further amend her

second amended complaint following its granting of OHSU’s

motion for summary judgment, we agree with OHSU that

she did not preserve that argument and we, therefore, do not

address it on appeal.

Although the sufficiency of plaintiff’s complaint was

at one time tested in the trial court by a former ORCP 21

A(8) (2018)5 motion, the court’s ruling on that motion is not

before us. Plaintiff argues that OHSU’s motion for summary

judgment “operated as a [former] ORCP 21 A(8) motion to

dismiss for failure to state a claim for relief.” We disagree

with that characterization. OHSU argued, and the trial

court found, that the evidence before it on the summary

judgment motion was insufficient to raise an issue of mate-

rial fact, thus entitling OHSU to prevail as a matter of law.

We look to that record—which includes both the pleadings

and the evidence presented—as we review the trial court’s

summary judgment ruling.

One typically may recover damages for injuries that

are the reasonably foreseeable result of another person’s

careless conduct. Fazzolari v. Portland School Dist. No. 1J,

303 Or 1, 17, 734 P3d 1326 (1987) (“[T]he issue of liability for

harm actually resulting from [a] defendant’s conduct [typi-

cally] depends on whether that conduct unreasonably cre-

ated a foreseeable risk to a protected interest of the kind of

harm that befell the plaintiff.”). A plaintiff in a professional

negligence case must ordinarily plead and prove

“(1) a duty that runs from the defendant to the plaintiff;

(2) a breach of that duty; (3) a resulting harm to the plain-

tiff measurable in damages; and (4) causation, i.e., a causal

link between the breach of duty and the harm.”

Zehr v. Haugen, 318 Or 647, 653-54, 871 P2d 1006 (1994).

A cause of action for negligence does not arise until the

5

ORCP 21 A(8) was renumbered as ORCP 21 A(1)(h), effective January 1,

2022. We cite the former version in this opinion. It authorizes motions to dismiss

for “failure to state ultimate facts sufficient to constitute a claim.”

616 Hofer v. OHSU

defendant’s negligent conduct causes harm that results in

damages. Berg v. Hirschy, 206 Or App 472, 475, 136 P3d

1182 (2006).

In negligence cases, “harm” generally means “phys-

ical injury.” See, e.g., Branch v. Hensgen, 90 Or App 528, 531,

752 P2d 1275, rev den, 306 Or 527 (1988) (explaining that

in a medical negligence case, “[i]njury in the legal sense

means physical injury” (internal quotation marks omitted)).

Proof of physical injury or, alternatively, breach of a height-

ened duty of care, is required in cases seeking damages for

emotional injury. Wilson v. Tobiassen, 97 Or App 527, 532,

777 P2d 1379, rev den, 308 Or 500 (1989) (explaining that

the physical injury rule provides assurance that the men-

tal disturbance is genuine and permits the courts to dis-

tinguish legitimate claims from speculative ones). In other

words, foreseeability alone is insufficient to establish lia-

bility. And, in the absence of physical injury, “there must

also be another ‘legal source’ of liability for the plaintiff to

recover emotional distress damages.” Philibert v. Kluser,

360 Or 698, 703, 385 P3d 1038 (2016) (quoting Norwest v.

Presbyterian Intercommunity Hosp., 293 Or 543, 569, 652

P2d 318 (1982)).

A “direct physician-patient relationship” can be

the legal source justifying a duty to protect “economic and

emotional interests under negligence law.” Tomlinson v.

Metropolitan Pediatrics, LLC, 362 Or 431, 443, 412 P3d 133

(2018). And there is no dispute here that this is a profes-

sional negligence claim that invokes the standard of care for

physicians set forth at ORS 677.095(1):

“A physician licensed to practice medicine or podiatry by

the Oregon Medical Board has the duty to use that degree

of care, skill and diligence that is used by ordinarily care-

ful physicians in the same or similar circumstances in the

community of the physician or a similar community.”

But a physician does not “operate under a general duty to

avoid any emotional harm that foreseeably might result

from their conduct.” Curtis v. MRI Imaging Services II, 327

Or 9, 15, 956 P2d 960 (1998). To recover damages from

one’s physician for emotional harm in the absence of phys-

ical injury, the physician’s standard of care must include a

Cite as 319 Or App 603 (2022) 617

“specific duty to be aware of and guard against particular

adverse psychological reactions or consequences to medical

procedures.” Id. at 14-15. The interest must be “of sufficient

importance as a matter of policy to merit protection from

emotional impact.” Hilt v. Bernstein, 75 Or App 502, 515, 707

P2d 88 (1985), rev den, 300 Or 545 (1986). Such instances

generally include (1) “when another party has a legal duty

‘designed to protect plaintiff[ ] against the type of harm’ ”

that occurred; (2) when a legally protected interest has been

created by statute to prevent “the type of emotional harm

that occurred”; and (3) when the interest has previously

been given protection under the common law. Philibert, 360

Or at 705-06 (brackets in Philibert).

Here, plaintiff argues that, as a patient, she has

a “legally protected interest in the accuracy of her med-

ical records” and in having inaccurate medical records

corrected. In support of that, she points to various federal

and state statutory provisions that protect personal health

information contained within a patient’s medical records

from unauthorized disclosure and that provide a process

for patients to request corrections to their medical records.

OHSU counters that exceptions to the physical injury

requirement are narrow, and further, that plaintiff did not

allege “that the standard of care for the alleged malpractice

(here, record keeping) included a duty to guard against the

patient’s psychic harm,” and in any event plaintiff failed to

“provide evidence of a standard of care that requires medi-

cal providers to protect against psychic harm when complet-

ing chart notes and medical records.”

Plaintiff relies on ORS 192.553(1)6 in support of her

contention that “medical records clearly qualify as a legally

protected interest.” She also mentions ORS 677.190(4) (relat-

ing to the regulation of medicine) and ORS 165.080 (relat-

ing to the falsification of business records), but she does not

6

ORS 192.553(1) provides:

“It is the policy of the State of Oregon that an individual has:

“(a) The right to have protected health information of the individual

safeguarded from unlawful use or disclosure; and

“(b) The right to access and review protected health information of the

individual.”

618 Hofer v. OHSU

develop her argument based on those provisions. And as

OHSU points out, neither the Health Insurance Portability

and Accountability Act of 1996 (HIPAA), the Standards for

Privacy of Individually Identifiable Health Information (the

Privacy Rule), nor the corresponding Oregon statutes create

a right of recovery in individuals for the wrongful violation

of those provisions.

Plaintiff does not demonstrate how the right to pri-

vacy that attaches to one’s medical records and the corre-

sponding rights of access and correction give rise to liability

in negligence for psychological damages, in the absence of

physical damage, caused by a physician’s failure to main-

tain accurate medical records. She has not alleged or offered

evidence sufficient to connect her physicians’ duty to use

that degree of care, skill, and diligence used by similarly

situated physicians in assessing and treating movement

disorders to a specific duty to maintain accurate patient

records for the specific purpose of protecting patients from

emotional harm that might arise from poor record-keeping

practices. And it is not our function to sort out and develop

such arguments for plaintiff given the record before us. See

R. S. R. v. Dept. of Human Services, 319 Or App 149, 161, 510

P3d 209 (2022) (“It is insufficient for plaintiff to merely iden-

tify those authorities and task us with determining how,

under controlling case law, they apply to his case.”); Beall

Transport Equipment Co. v. Southern Pacific, 186 Or App

696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187

Or App 472, 68 P3d 259 (2003) (“[I]t is not this court’s func-

tion to speculate as to what a party’s argument might be” or

“to make or develop a party’s argument when that party has

not endeavored to do so itself.”).

The ORCP 47 E affidavit submitted by plaintiff’s

counsel in response to OHSU’s summary judgment motion

does not assist plaintiff. Although we view that affidavit

“like all parts of the record, in the light most favorable to

plaintiffs,” Two Two, 355 Or at 331, it does not defeat sum-

mary judgment where, as here, plaintiff did not develop

or support her arguments concerning whether there is an

interest in the accuracy of one’s medical records sufficiently

important to provide an exception to the physical injury rule

that applies to negligence cases.

Cite as 319 Or App 603 (2022) 619

CONCLUSION

The trial court did not err in granting OHSU’s sum-

mary judgment motions as to plaintiff’s defamation and

medical negligence claims. Therefore, we affirm.

Affirmed.