Hofer v. OHSU

352 September 27, 2023 No. 506

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Linda Sue HOFER,

Plaintiff-Appellant,

v.

OREGON HEALTH AND SCIENCE UNIVERSITY,

Defendant-Respondent.

Multnomah County Circuit Court

18CV14839; A172328

On remand from the Oregon Supreme Court, Hofer v.

Oregon Health and Science University, 370 Or 214, 516 P3d

1175 (2022).

Christopher A. Ramras, Judge.

Submitted on remand October 27, 2022.

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.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

MOONEY, J.

Judgment for OHSU on defamation claim reversed and

remanded; otherwise affirmed.

Cite as 328 Or App 352 (2023) 353

354 Hofer v. OHSU

MOONEY, J.

This case is before us on remand from the Supreme

Court. Hofer v. Oregon Health and Science University, 370

Or 214, 516 P3d 1175 (2022) (Hofer II) (remanding in light

of Lowell v. Medford School Dist. 549C, 370 Or 79, 515 P3d

359 (2022) (Lowell II)). When this case was previously before

us, we concluded that (1) absolute privilege barred plain-

tiff’s defamation claim, and (2) the trial court did not err in

dismissing plaintiff’s medical negligence claim because no

issue of material fact existed with respect to that claim and

Oregon Health and Science University (OHSU) was entitled

to prevail as a matter of law.1 Hofer v. OHSU, 319 Or App

603, 511 P3d 414, vac’d and rem’d, 370 Or 214, 516 P3d 1175

(2022) (Hofer I). We affirmed. Id.

In reaching our conclusion that absolute privilege

barred plaintiff’s defamation claim, we relied on our earlier

opinion in Lowell v. Medford School Dist. 549C, 313 Or App

599, 497 P3d 797 (2021), rev’d, 370 Or 79, 515 P3d 359 (2022)

(Lowell I), where we held, essentially, that any employee of

a public school district had an absolute privilege to make

defamatory statements when carrying out their official

duties. As OHSU acknowledges, Lowell II narrowed the

application of absolute privilege and now operates to defeat

summary judgment on plaintiff’s defamation claim on that

basis. The trial court, thus, erred when it granted summary

judgment to OHSU on the defamation claim on the basis of

absolute privilege.

OHSU notes, however, that it supported its motion

for summary judgment on the defamation claim on two dis-

tinct theories: absolute privilege and the alternative ground

that “plaintiff cannot establish the requisite elements of a

claim for defamation.” The parties briefed and argued both

theories in the trial court, but that court granted the motion

solely on the basis of absolute privilege and did not rule

on OHSU’s alternative theory. Relying on Outdoor Media

Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20

1

Lowell II does not implicate our decision in Hofer I affirming the trial

court’s granting of summary judgment in favor of OHSU on plaintiff’s medical

negligence claim and, thus, we do not address that claim on remand other than

to acknowledge and reaffirm it.

Cite as 328 Or App 352 (2023) 355

P3d 180 (2001), and Sherertz v. Brownstein Rask, 314 Or App

331, 341, 498 P3d 850 (2021), rev den, 369 Or 338 (2022),

OHSU urges us to affirm the trial court’s summary judg-

ment ruling based on OHSU’s alternative theory, contending

that it is legally correct and supports summary judgment in

its favor as a matter of law. Plaintiff responds that the alter-

native theory for OHSU’s summary judgment motion is not

before us because the trial court did not reach it.

OHSU is not asking us to take up an argument that

it is making for the first time on appeal. In its summary

judgment motion, OHSU argued that plaintiff could not

establish that the allegedly defamatory statements written

in OHSU’s medical records system had been published to a

third party or that any such publication resulted in dam-

age to her. OHSU submitted excerpts from plaintiff’s depo-

sition testimony in which she stated that she was not sure

who had seen the statements and that she, therefore, could

not point to any harm caused by someone else seeing them.

Plaintiff was required to address the alternative argument

in the trial court because she would have had the burden of

persuasion on each element of her defamation claim at trial.

ORCP 47 C. She did so in her written response to the motion

and she supported her response with deposition testimony

of Dr. Bernard concerning the allegedly defamatory state-

ments that Bernard typed into the medical record system,

an audit report identifying individuals who had accessed

plaintiff’s OHSU medical records over a one-year period of

time, and her attorney’s ORCP 47 E affidavit. The parties,

thus, developed the record on the alternative argument.

When plaintiff assigned error to the trial court’s

ruling on OHSU’s summary judgment motion, it was up to

OHSU whether to continue both arguments before us. See

Sherertz, 314 Or App at 341 n 8 (“If an alternative argument

was made to the trial court, it is up to the party whether to

continue pursuing it on appeal[.]”). OHSU pursued its alter-

native argument on appeal as it was permitted to do, and,

therefore, if the alternative argument would support sum-

mary judgment in OHSU’s favor as a matter of law, then

“we may simply resolve it.” Sherertz, 314 Or App at 341; see

also Eklof v. Steward, 360 Or 717, 736, 385 P3d 1074 (2016)

356 Hofer v. OHSU

(noting that in the summary judgment context the “partic-

ular importance” of the Outdoor Media requirement that

the record be materially the same as it would have been

had the prevailing party raised the alternative basis below,

where “the opposing party had no reason to adduce evidence

on an issue that was not raised in the summary judgment

motion”). We turn to the question of whether OHSU’s alter-

native theory would support summary judgment in its favor

and, thus, provide a basis for affirming the trial court.2

We begin by delineating the scope of our review.

The Oregon Supreme Court recently wrote:

“The contours of summary judgment review are set by

the operative complaint and the specific arguments for sum-

mary judgment advanced by a party. Under ORCP 47 C,

the party opposing summary judgment has the burden of

producing evidence on any issue raised in the motion as to

which that party would have the burden of persuasion at

trial.”

Adelsperger v. Elkside Development LLC, 371 Or 61, 65, 529

P3d 230 (2023) (internal quotation marks omitted). We,

thus, begin with the operative complaint.

In her second amended complaint, first claim for

relief (defamation), plaintiff alleges that Dr. MacDonald,

an OHSU-employed physician, “wrote, drafted, prepared,

authored, dictated, wrote, and communicated a summary

statement of her * * * evaluation of plaintiff[,]” Second

Amended Complaint at ¶10, Filed Oct 11, 2018, Hofer v.

Oregon Health and Science University (18CV14839), that

the “statement was a false communication of fact, published

in the EPIC system database as part of plaintiff’s medi-

cal records[,]” id. at ¶12, “where they could be seen by all

potential healthcare providers who query the health infor-

mation exchange software and were read by all who treated

and would treat plaintiff in the future.” Id. at ¶15. Plaintiff

alleged harm from the publication of MacDonald’s false

statements.

2

We do not agree that plaintiff “waived opposition to the alternative grounds

for affirmance of summary judgment against her defamation claim” by not filing

a reply brief in this court.

Cite as 328 Or App 352 (2023) 357

In her second claim for relief (defamation), plain-

tiff alleges that Dr. Bernard, an OHSU-employed physician,

“prepared, authored, dictated, wrote, and communicated the

summary statement of [MacDonald’s] evaluation of plaintiff

in conjunction with any summary statements or notes from

Ms. MacDonald[,]” id. at ¶20, and that the “statement was a

false communication of fact, published in the EPIC database

system[,]” id. at ¶22. Plaintiff alleged harm from the publi-

cation of Bernard’s false statements.

OHSU’s summary judgment motion, as pertinent

here, places at issue plaintiff’s ability to prove that the

allegedly false statements were published, and that the

publication of those statements caused plaintiff harm. As

already mentioned, OHSU supported its motion with plain-

tiff’s deposition testimony that she was not sure who had

seen the statements and that she, therefore, could not point

to any harm caused by someone else seeing them. And,

again, plaintiff opposed the motion and submitted deposi-

tion testimony of Bernard concerning the allegedly defam-

atory statements that Bernard typed into the electronic

medical record, an audit report identifying individuals who

had accessed plaintiff’s OHSU medical records over a one-

year period of time, and her attorney’s ORCP 47 E affidavit.

In its reply memorandum in support of its motion, OHSU

narrowed its focus somewhat to the question of publication

when it agreed that “although damages may be presumed

when a defamatory statement is in written form, plaintiff is

still required to link the presumed harm to the publication

of the defamatory statement to a third person.” It did not

address the ORCP 47 E affidavit submitted by plaintiff in

opposition to OHSU’s summary judgment motion.

“We review a trial court’s grant of summary judg-

ment for errors of law * * *.” Beneficial Oregon, Inc. v. Bivins,

313 Or App 275, 277, 496 P3d 1104 (2021). We are to affirm

only “if the pleadings, depositions, affidavits, declarations,

and admissions on file show that there is no genuine issue as

to any material fact and that the moving party is entitled to

prevail as a matter of law.” ORCP 47 C. We view the record

that was before the trial court in the light most favorable

to plaintiff as the party opposing summary judgment, and

358 Hofer v. OHSU

we “examine whether no objectively reasonable juror could

find in [plaintiff’s] favor on the question at issue.” Beneficial

Oregon, Inc., 313 Or App at 277. We view the ORCP 47 E

affidavit submitted by plaintiff “like all parts of the record,

in the light most favorable” to her as the party opposing the

motion. Two Two v. Fujitec America, Inc., 355 Or 319, 331,

325 P3d 707 (2014).

The pertinent facts are few. Plaintiff has a move-

ment disorder for which she received treatment from her

Washington physician in the form of the prescribed medi-

cation methadone. Plaintiff moved to Oregon and began the

process of looking for an Oregon physician who would assume

treatment of her movement disorder and, in particular, an

Oregon physician who would assume the role of prescriber for

methadone. In that process, plaintiff saw MacDonald, a phy-

sician and third year resident at OHSU’s neurology clinic.

MacDonald initially prescribed methadone for plaintiff, but

some months later declined to continue that prescription.

MacDonald documented her medical encounters with plain-

tiff in OHSU’s electronic medical record system known as

EPIC. MacDonald’s attending physician, Bernard, reviewed

MacDonald’s documentation of MacDonald’s final encounter

with plaintiff and typed her own note into plaintiff’s OHSU

medical record in EPIC. OHSU did not dispute the defama-

tory nature of the statements typed into EPIC when it filed

its motion for summary judgment. It limited the scope of its

motion to publication and damage. We necessarily limit our

review in the same way.

“To establish a claim for defamation, a plaintiff

must show that a defendant made a defamatory statement

about the plaintiff and published the statement to a third

party.” Neumann v. Liles, 358 Or 706, 711, 369 P3d 1117

(2016). The focus of OHSU’s evidentiary argument is on the

lack of evidence of publication and also the lack of evidence

that plaintiff was harmed by any such publication. Plaintiff

contends that “conflicting evidence existed as to [the] prima

facie” claim that is sufficient to deny summary judgment to

OHSU on OHSU’s alternative theory.

Plaintiff points to the evidence she submitted in

opposition to summary judgment in the trial court: (1) her

Cite as 328 Or App 352 (2023) 359

own deposition testimony that her Washington physician

and office staff person saw the statements in EPIC, (2) an

audit report identifying individuals who had accessed plain-

tiff’s OHSU medical records through EPIC over a period of

time, and (3) her attorney’s ORCP 47 E affidavit.

OHSU dismisses the fact that plaintiff’s Washington

physician saw the statements by asserting that plaintiff

asked her to review the OHSU records and that publication

to her physician was, therefore, with plaintiff’s consent. We

reject OHSU’s consent argument as a basis for affirming

summary judgment. OHSU relies on Christensen v. Marvin,

273 Or 97, 99, 539 P2d 1082 (1975), and Lee v. Paulsen, 273

Or 103, 105, 539 P2d 1079 (1975), to support its argument

that it is not liable for communicating defamatory state-

ments about plaintiff with her consent. Those cases are

distinguishable. Christensen and Lee concern teachers who

requested that their respective school board create a writ-

ten statement of the reasons their teaching contracts were

not being renewed, knowing that the reasons would not be

favorable. Christensen, 273 Or at 98; Lee, 273 Or at 104-05.

This case is different. The allegedly defamatory state-

ments were not created at plaintiff’s request. There is at

least a question of fact on this record as to whether plain-

tiff consented to the publication of defamatory statements

about her when she authorized access to her records by her

Washington physician.

We turn to the ORCP 47 E affidavit.3 In it, plain-

tiff’s attorney declares that he has “retained a qualified

3

ORCP 47 E provides:

“Motions under this rule are not designed to be used as discovery devices

to obtain the names of potential expert witnesses or to obtain their facts or

opinions. If a party, in opposing a motion for summary judgment, is required

to provide the opinion of an expert to establish a genuine issue of material

fact, an affidavit or a declaration of the party’s attorney stating that an

unnamed, qualified expert has been retained who is available and willing

to testify to admissible facts or opinions creating a question of fact will be

deemed sufficient to controvert the allegations of the moving party and an

adequate basis for the court to deny the motion. The affidavit or declaration

must be made in good faith based on admissible facts or opinions obtained

from a qualified expert who has actually been retained by the attorney, who

is available and willing to testify, and who has actually rendered an opinion

or provided facts that, if revealed by affidavit or declaration, would be a suf-

ficient basis for denying the motion for summary judgment.”

360 Hofer v. OHSU

expert who is available and willing to testify to admissible

facts and opinions creating questions of fact on the material

issues in dispute in this case[.]” He further declares that

he “actually retained” that qualified expert who “actually

provided [plaintiff’s counsel with] facts and [who] rendered

opinions which, if revealed, would provide a sufficient basis

to deny [OHSU’s] motion for summary judgment[.]”

The fact that plaintiff offered an ORCP 47 E affi-

davit to raise an issue of fact on the element of publication

“does not automatically create an issue of fact, but will

preclude summary judgment when the expert testimony

is required to establish a genuine issue of material fact.”

VFS Financing, Inc. v. Shilo Management Corp., 277 Or App

698, 706, 372 P3d 582, rev den, 360 Or 401 (2016) (internal

quotation marks omitted). In general, expert testimony is

required to establish a genuine issue of fact when the issue

raised is “not within the knowledge of the ordinary lay

juror.” Vandermay v. Clayton, 328 Or 646, 655, 984 P2d 272

(1999).

In addressing whether a party is required to pres-

ent expert testimony to establish a genuine issue of material

fact in response to a summary judgment motion, we have

said that “expert testimony is required * * * when the point

or points put at issue by the summary judgment motion are

ones that are susceptible to proof through expert testimony,

given the plaintiff’s particular theory of her claim.” Box v.

Oregon State Police, 311 Or App 348, 373, 492 P3d 685, adh’d

to as modified on recons, 313 Or App 802, 492 P3d 1292,

rev den, 369 Or 110 (2021) (internal quotation marks omit-

ted). “[I]f the point or points put at issue by a defendant’s

summary judgment motion could not conceivably be proven

through expert testimony, but necessarily would require

proof by testimony from witnesses with personal knowl-

edge, then an ORCP 47 E affidavit will not, on its own, pre-

clude summary judgment.” Hinchman v. UC Market, LLC,

270 Or App 561, 572, 348 P3d 328 (2015); see also Whalen v.

American Medical Response Northwest, 256 Or App 278, 300

P3d 247 (2013) (ORCP 47 E affidavit precluded summary

judgment where plaintiff alleged that she suffered amnesia

as a result of the physical assault which made direct proof of

Cite as 328 Or App 352 (2023) 361

battery difficult; the affidavit along with evidence about the

circumstances of the incident created a dispute of fact about

whether a battery occurred); Deberry v. Summers, 255 Or App

152, 296 P3d 610 (2013) (ORCP 47 E affidavit held not to

preclude summary judgment in a breach of contract case

because the existence of the agreement was a question of

fact that requires personal, rather than expert, knowledge).

ORCP 47 E reflects Oregon’s policy choice to pro-

tect “the content of expert testimony from discovery and

disclosure pretrial.” Hinchman, 270 Or App at 570. Given

that legislative policy, we have said in dicta that assessing

the adequacy of an ORCP 47 E affidavit to defeat summary

judgment can “sometimes require an act of imagination by

the summary judgment court.” Id. More to the point, though,

because Oregon protects both the identity of expert wit-

nesses and the content of their testimony from pretrial dis-

covery in civil matters, the court must accept an attorney’s

ORCP 47 E affidavit at face value, presume that they have

such testimony available and that they plan to prove their

case with it at trial, and deny summary judgment. ORCP

47 E, in effect, leaves very little to the court’s imagination.

As mentioned already, the focus of OHSU’s motion is

that plaintiff has no evidence that a defamatory statement

was published to a third party. OHSU has not addressed,

either in the trial court or in this court, the ORCP 47 E

affidavit that plaintiff submitted with her response oppos-

ing its summary judgment motion on the defamation claim.

We must nevertheless determine whether publication, a

key issue raised by OHSU’s motion for summary judgment,

could conceivably be proven through expert testimony.

It is not disputed that OHSU’s employed physicians

typed their notes about plaintiff’s medical encounters at

OHSU into EPIC, the digital medical record system used by

OHSU. It is also undisputed that the audit trail submitted by

plaintiff with her opposition memorandum in the trial court

reflects numerous instances over a period of time when var-

ious persons, including plaintiff, accessed plaintiff’s OHSU

medical records through EPIC. OHSU asserts that the

audit trail does not provide evidence of which chartnotes,

or other entries, any one person actually viewed when they

362 Hofer v. OHSU

accessed the records. It argues that the audit trail “indi-

cates only that OHSU employees accessed some portion” of

the records.4 One can readily see that plaintiff was a person

who repeatedly accessed her OHSU medical records through

EPIC. The audit, thus, identifies at least one person who is

not an OHSU employee. Certainly, a person with expertise

in the medical records industry, the healthcare industry, or

some related industry, might conceivably be able to offer tes-

timony about how EPIC works, what the audit trail demon-

strates about access, and whether it appears, in his or her

professional opinion, more likely than not that the allegedly

defamatory statements were published to third parties. We

conclude that expert testimony could be helpful to a jury in

its resolution of the factual question whether the allegedly

defamatory statements were published to a third party.

Plaintiff’s ORCP 47 E affidavit, viewed in conjunction with

the record that was before the trial court, in the light most

favorable to plaintiff, is sufficient to raise genuine issues of

fact about publication and to preclude summary judgment.

Judgment for OHSU on defamation claim reversed

and remanded; otherwise affirmed.

4

We acknowledge OHSU’s argument that publications to and between its

agents and employees would be subject to qualified privilege. But OHSU did not

raise qualified privilege in its summary judgment motion, and its reference to

qualified privilege in this court is factually and legally underdeveloped and does

not provide a basis to affirm. See Harmon v. State of Oregon, 320 Or App 406, 410

n 4, 514 P3d 1131 (2022) (explaining that qualified immunity had not been raised

in the state’s motion for summary judgment and that the state’s undeveloped

qualified immunity argument on appeal did not provide a basis to affirm).