Concienne v. Asante ( 2019 )

490
Argued and submitted October 22, 2018, judgment vacated and remanded with
instructions to dismiss the complaint for lack of standing September 18, 2019,
petition for review denied January 30, 2020 (366 Or 135)
Robert CONCIENNE,
Plaintiff-Appellant,
v.
ASANTE,
dba Rogue Valley Medical Center,
and Ruth Rabinovitch, M.D.,
Defendants,
and
Tracey Stephen KATHER, N.P.,
Defendant-Respondent.
Jackson County Circuit Court
123280L3; A162899
450 P3d 533
In this medical malpractice case, plaintiff alleged that defendant, a nurse
practitioner, misdiagnosed plaintiff, resulting in his subsequent hospitalization
and surgery. After the facts underlying the medical malpractice action occurred,
but before the suit was brought, plaintiff concluded a Chapter 7 bankruptcy case
in which plaintiff’s debts were discharged. During the bankruptcy case, plaintiff
was required to disclose all assets, including civil claims against third parties.
Plaintiff did not disclose his potential medical malpractice cause of action to the
bankruptcy court. Based on plaintiff’s failure to disclose the claim as an asset,
defendant moved for summary judgment, citing the doctrine of judicial estop-
pel. The trial court granted defendant’s motion. On appeal, the issue is whether
plaintiff’s bankruptcy estate is the owner of plaintiff’s medical malpractice claim
because plaintiff was, or reasonably should have been, aware of the potential
claim when he failed to list it as an asset in the earlier Chapter 7 bankruptcy
proceeding. Held: The trial court erred by failing to dismiss plaintiff’s complaint
for lack of standing. As a matter of law, plaintiff was, or reasonably should have
been, aware of the claim when he failed to disclose it to the bankruptcy court.
Therefore, the bankruptcy estate owned and controlled the claim. As a result, the
bankruptcy trustee was the real party in interest, and plaintiff lacked standing
to bring the claim.
Judgment vacated and remanded with instructions to dismiss the complaint
for lack of standing.
Ronald D. Grensky, Judge.
Kevin L. Cathcart argued the cause and filed the briefs
for appellant.
Cite as 299 Or App 490 (2019) 491
Janet M. Schroer argued the cause for respondent. Also
on the brief were Ruth C. Rocker and Hart Wagner LLP.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
SHORR, J.
Judgment vacated and remanded with instructions to
dismiss the complaint for lack of standing.
492 Concienne v. Asante
SHORR, J.
The issue in this case is whether plaintiff’s bank-
ruptcy estate is the owner of plaintiff’s medical malprac-
tice claim because plaintiff was or reasonably should have
been aware of the potential claim when he failed to list it
as an asset in an earlier Chapter 7 bankruptcy proceeding.
As discussed below, we conclude that, as a matter of law,
plaintiff was or reasonably should have been aware of the
claim when he failed to list it with the bankruptcy court
and, therefore, the bankruptcy estate owns and controls the
claim.
Plaintiff alleges that defendant Kather, a nurse
practitioner, failed to diagnose plaintiff with acute respira-
tory failure secondary to pneumocystis jiroveci pneumonia
(PCP), which is an illness caused by AIDS. Plaintiff alleges
that that failure resulted in plaintiff’s hospitalization and
the removal of his colon. Nearly one year after that hospital-
ization, plaintiff concluded a Chapter 7 bankruptcy case in
which the court determined that plaintiff had no assets and,
therefore, discharged his debts. Plaintiff did not disclose the
potential malpractice claim as an asset during that proceed-
ing. Plaintiff later filed this action. Kather, citing the doc-
trine of judicial estoppel, moved for summary judgment on
the ground that plaintiff’s attempt to bring this malpractice
case was inconsistent with his position in the bankruptcy
case that he had no assets—including any claims against
third parties. Kather also raised the alternative argument
that plaintiff was not the party in interest—and therefore
lacked standing—because plaintiff’s claim was an unsched-
uled asset that belonged to his bankruptcy estate. The trial
court concluded that judicial estoppel applied and granted
defendant’s motion, and plaintiff appeals. For the reasons
explained below, we conclude that plaintiff lacked stand-
ing to bring the claim. Accordingly, we vacate the judgment
in Kather’s favor and remand for the trial court to dismiss
plaintiff’s complaint for lack of standing.
I. FACTUAL AND PROCEDURAL BACKGROUND
We begin with a factual background of plaintiff’s
bankruptcy case and subsequent medical malpractice lawsuit.
Cite as 299 Or App 490 (2019) 493
The relevant facts that underlie the issue of standing are
undisputed.
A. Plaintiff initiated a Chapter 13 bankruptcy case.
On January 8, 2009, plaintiff filed a petition for
bankruptcy in the United States Bankruptcy Court in the
District of Oregon. Because he was able to earn income
at the time, the bankruptcy court deemed him eligible for
Chapter 13 status and established a bankruptcy plan for
repayment of his debts.
B. Plaintiff’s Relevant Medical History
Between January and June 2010, plaintiff was hav-
ing trouble breathing and sought medical care from Kather,
a nurse practitioner. Kather diagnosed plaintiff with reac-
tive airway disease (RAD) and provided plaintiff with an
inhaler to help manage his symptoms. On July 8, 2010,
plaintiff began to have great difficulty breathing and was
admitted to the emergency department at Rogue Valley
Medical Center (RVMC), where doctors determined plain-
tiff’s breathing difficulties and other symptoms were PCP—
not RAD—resulting from plaintiff being positive with HIV
and having AIDS. Prior to that diagnosis, plaintiff was
unaware that he was HIV positive, let alone that the dis-
ease had progressed to such an advanced stage. After he
was admitted to the intensive care ward at RVMC, plaintiff
developed a severe infection in his colon, requiring a com-
plete colectomy on July 25, 2010.
C. Plaintiff converted his Chapter 13 to a Chapter 7 bank-
ruptcy case and received a “no asset” discharge of his
debts.
Approximately six months after plaintiff’s AIDS
diagnosis, hospitalization, and colectomy, plaintiff was no
longer able to make the payments required by his Chapter 13
bankruptcy and converted his bankruptcy case to Chapter 7
on January 26, 2011. In converting from a Chapter 13 to
a Chapter 7, plaintiff was required to file a list of credi-
tors holding unsecured claims as of the date of conversion,
including creditors associated with plaintiff’s medical care
494 Concienne v. Asante
that he received in relation to his AIDS diagnosis, hospital-
ization, and surgery. Plaintiff had accrued nearly $80,000
in debt at that point, over $70,000 of which was attributable
to AIDS-related medical services largely arising out of his
prior hospitalization.
As part of the Chapter 7 conversion, plaintiff was
also required to submit to the bankruptcy court a list, or
“schedule,” of assets as required by the Bankruptcy Code, 11
USC § 521, that plaintiff possessed as of that date. Plaintiff’s
schedule of assets required him to disclose, among other
things, “other contingent and unliquidated claims of every
nature,” and an estimated value of each. Plaintiff marked in
his schedule that he had “none.”
On May 12, 2011, the bankruptcy court discharged
plaintiff’s debt accrued as a result of his medical services
related to his AIDS diagnosis.1 The court’s order of dis-
charge identified plaintiff’s petition as a “no asset” case, as
the court was under the impression that plaintiff possessed
no property that could be disposed of for the benefit of his
creditors.
D. Plaintiff filed his medical malpractice case against
Kather.
On December 21, 2012, nearly 18 months after the
close of plaintiff’s bankruptcy case, plaintiff filed his first
amended complaint against Kather, alleging professional
negligence and seeking $3,000,000 in economic and noneco-
nomic damages. Specifically, plaintiff’s complaint alleged
that Kather was negligent “in one or more of the following
particulars”:
“(a) In failing to diagnose plaintiff’s respiratory fail-
ure secondary to pneumocystis jiroveci pneumonia (PCP)
when he knew or should have known that plaintiff was
H.I.V. positive and had A.I.D.S.,
1
A bankruptcy discharge “ ‘releases the debtor from personal liability for
[his or] her pre-bankruptcy debts.’ A discharge ‘is the legal embodiment of the
idea of the fresh start; it is the barrier that keeps the creditors of old from reach-
ing wages and other income of the new.’ ” Sherwood Park Business Center, LLC v.
Taggart, 267 Or App 217, 227, 341 P3d 96 (2014) (quoting In re Ybarra, 424 F3d
1018, 1022 (9th Cir 2005) (internal citations omitted)).
Cite as 299 Or App 490 (2019) 495
“(b) In failing to recommend that plaintiff be tested for
H.I.V., when he knew or should have known that plaintiff’s
medical history put him at risk for being H.I.V. positive[,]
“(c) In failing to refer plaintiff to a medical doctor
when it was apparent that plaintiff was not responding to
the prescribed treatment for RAD/Asthmatic Bronchitis,
and
“(d) In failing to confer with a medical doctor in regard
to plaintiff’s breathing problems when it was apparent that
plaintiff was not responding to the prescribed treatment
for RAD/Asthmatic Bronchitis.”
Plaintiff further alleged that, as a result of the negligence,
plaintiff was hospitalized for two months, lost his colon, and
suffered corresponding damages.
During his deposition on May 12, 2016, plaintiff testi-
fied that he “rather quickly” blamed Kather for the allegedly
negligent care that he had provided. When Kather’s attor-
ney asked plaintiff whether he “had decided within a cou-
ple of months after [his] discharge from the hospital that
[defendant] had made mistakes,” plaintiff replied, “I would
have to say yes.” Plaintiff then explained that, at first, he
was in “shock” and “totally confused” about the sudden
change wrought by his hospitalization and surgery in July
2010, but, when he “started really thinking about every-
thing,” he “made the decision to file a lawsuit.” During that
period—within a couple of months after his discharge from
the hospital—plaintiff felt “that both [Kather], and also the
hospital, were negligent.” Plaintiff “didn’t rush” to file a law-
suit, however, because he knew it would “affect [Kather’s]
life[.]”
Later, on July 4, 2016, plaintiff submitted a decla-
ration in which he asserted that he had not disclosed the
claim against defendant during his Chapter 7 bankruptcy
proceeding because, at that point, he “hadn’t hired an attor-
ney to investigate or pursue any claims” and he “really
didn’t think that it would come to [him] bringing litigation
against defendant.” Plaintiff further explained that he had
been reluctant to bring a lawsuit because he was not “sue
happy” and “wasn’t really sure if [Kather] did anything
wrong initially[.]”
496 Concienne v. Asante
Plaintiff proceeded to describe the circumstances
leading to his decision to file his claim against Kather. In
January 2011, around the time that plaintiff converted to
a Chapter 7 bankruptcy and averred that he had no claims
against third parties, plaintiff moved to Palm Springs,
California. In the “months after” he moved, plaintiff “met
and spoke with other individuals in the community who
had survived AIDS” who expressed surprise that plain-
tiff’s condition had become so serious. In September of that
year, plaintiff moved in with his partner, an attorney, who
“expressed concern” that plaintiff “may have a potential
medical malpractice claim against [his] providers.” Plaintiff
had already retrieved his medical records in June 2011 to
establish care with new providers in Palm Springs, and, in
October of that year, he began to send those records to medi-
cal malpractice attorneys for evaluation to initiate the claim
at issue here. Plaintiff filed his complaint in July 2012 and
filed his amended complaint in December of that year.
Kather moved for summary judgment. As noted, his
primary argument was that plaintiff was judicially estopped
from bringing his claim because he had failed to list the
claim as an asset when he converted to Chapter 7 bank-
ruptcy. Plaintiff responded that he had not been obligated
to list the claim at that time because he did not “discover”
the claim until after his bankruptcy case had closed. In
the alternative, Kather argued that plaintiff lacked stand-
ing to bring his negligence claim because the claim was, in
fact, property of his bankruptcy estate and the bankruptcy
trustee was the only party in interest. Plaintiff did not
respond to Kather’s standing argument at that time.
The trial court agreed with Kather that plaintiff
was judicially estopped from bringing his claim and granted
summary judgment. The court did not resolve Kather’s
standing argument. On appeal, plaintiff again argues that
he neither knew nor should have known that he had a via-
ble medical malpractice claim against Kather at any point
during his bankruptcy case. Plaintiff’s position, effectively,
is that the statute of limitations had not yet started to run
on his claim during his bankruptcy case, and, because there
is no reason why the standard for when a claim must be
Cite as 299 Or App 490 (2019) 497
scheduled should be different from the standard for when the
statute of limitations begins to run, he was not required to
schedule the claim as an asset. As a result, plaintiff argues,
judicial estoppel is not appropriate in this case. Kather, in
his response, primarily argues that judicial estoppel is war-
ranted but also contends that we should affirm the trial
court’s ruling on the alternative basis that plaintiff lacked
standing to bring his claim.
II. ANALYSIS
As explained, the trial court granted defendant’s
motion for summary judgment based on its conclusion that
plaintiff was judicially estopped from bringing the medical
malpractice claim. On appeal, the parties primarily focus on
whether that ruling constituted legal error. But Kather also
reiterates his alternative argument that plaintiff lacked
standing to bring his claim. As a general rule, when a party
raises an alternative argument for affirmance on appeal,
we consider whether it would be appropriate to affirm on
that basis using the framework described by Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001). However, we need not apply that framework
when a party on appeal challenges the trial court’s jurisdic-
tion to entertain the plaintiff’s action, as we have an “inde-
pendent obligation to consider jurisdictional issues,” includ-
ing standing, even where the parties “have failed to fully
explore the issue” or, as in this case, the trial court ruled on
a different basis. Alto v. City of Cannon Beach, 247 Or App
641, 648, 270 P3d 392 (2012). Thus, we may consider the
threshold question of plaintiff’s standing in this case with-
out employing the Outdoor Media Dimensions Inc., frame-
work, because, if plaintiff was without standing to bring the
malpractice claim, then the trial court lacked the authority
to enter a judgment resolving the claim for either party. See
Dept. of Human Services v. B. M. C., 272 Or App 255, 262,
355 P3d 190 (2015) (“Because [the petitioner] lacked stand-
ing to bring its motion * * * the trial court had no jurisdic-
tion to enter an order granting that motion.”).
Standing “is a legal term that identifies whether a
party to a legal proceeding possesses a status or qualifica-
tion necessary for the assertion, enforcement, or adjudication
498 Concienne v. Asante
of legal rights or duties.” Kellas v. Dept. of Corrections, 341
Or 471, 476-77, 145 P3d 139 (2006). Put differently, standing
refers to “ ‘the right to obtain an adjudication.’ ” Fenimore v.
Blachly-Lane County C.E.A., 297 Or App 47, 51, 441 P3d 699
(2019) (quoting Eckles v. State of Oregon, 306 Or 380, 383, 760
P3d 846 (1988)). To say that a plaintiff has no standing is to
say that he or she “ ‘has no right to have a tribunal decide a
claim,’ ” whether or not another plaintiff has any such right.
7455 Incorporated v. Tuala Northwest, LLC, 274 Or App 833,
839, 362 P3d 1179 (2015) (quoting Eckles, 306 Or at 383).
“Parties have standing to assert only their own legal rights
and cannot rest their claims upon the legal rights of third
parties.” Id. at 838 (internal quotation marks omitted). It
follows that a party who is not the “real party in interest”
to a claim necessarily lacks standing to seek resolution of
the claim in our courts. Dischinger Orthodontics v. Regence
BlueCross BlueShield, 288 Or App 297, 299, 405 P3d 164
(2017) (concluding that the trial court properly dismissed
the plaintiffs’ claims because they were not the real parties
in interest and lacked standing); Vucak v. City of Portland,
194 Or App 564, 571-72, 96 P3d 362 (2004) (concluding that
the bankruptcy estate and not the plaintiff “was the real
party in interest”).
As we discuss below, we conclude that plaintiff in
this case lacked standing to pursue the medical malpractice
claim, because the claim belonged to his bankruptcy estate
and the bankruptcy trustee was the real party in inter-
est. To explain our decision, we first provide an overview
of the relevant aspects of bankruptcy law. We then explain
why, in light of that law, plaintiff did not have the right to
personally seek an adjudication of the claim from the trial
court because that right belongs to the bankruptcy estate’s
trustee.
A. Relevant Bankruptcy Law
Bankruptcy proceedings are governed by the fed-
eral Bankruptcy Code. 11 USC §§ 101 to 1532. As the Ninth
Circuit Court of Appeals has explained,
“the Bankruptcy Code is a public scheme for restructuring
debtor-creditor relations, necessarily including the exercise
of exclusive jurisdiction over all of the debtor’s property, the
Cite as 299 Or App 490 (2019) 499
equitable distribution of that property among the debtor’s
creditors, and the ultimate discharge that gives the debtor
a fresh start by releasing him, her, or it from further liabil-
ity for old debts.”
In re Deitz, 760 F3d 1038, 1046 (9th Cir 2014) (internal cita-
tions and brackets omitted).
When a debtor files a bankruptcy petition, an estate
is created comprised of the debtor’s nonexempt property
as defined under section 541 of the Bankruptcy Code. 11
USC § 541(a). To facilitate the disposition of assets by the
estate for the benefit of the bankruptcy creditors, the debtor
must file a “schedule of assets” with the bankruptcy court.
Id. § 521(a)(1)(B). A bankruptcy debtor has “an affirma-
tive duty ‘carefully, completely and accurately’ to schedule
assets.” Vucak, 194 Or App at 570 (quoting Cusano v. Klein,
264 F3d 936, 946 (9th Cir 2001)). Full disclosure of assets—
even assets that potentially might not be property of the
estate—is important because “the concept of ‘property of the
estate’ is a fact-based legal conclusion to be decided by the
court.” In re JZ LLC, 371 BR 412, 417 (BAP 9th Cir 2007).
Federal law determines what types of property
must be scheduled under section 541, while state law cre-
ates and defines the nature of the property interest. Butner
v. United States, 440 US 48, 54-55, 99 S Ct 914, 59 L Ed 2d
136 (1979). The bankruptcy estate consists of “all legal or
equitable interests of the debtor in property as of the com-
mencement of the case.” 11 USC § 541(a)(1). That includes
claims against third parties that the debtor possessed as of
the petition date. Cusano, 264 F3d at 945 (explaining that
assets of the estate include a debtor’s causes of action). A
“claim” is broadly defined and includes a “right to payment,
whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, dis-
puted, undisputed, legal, equitable, secured, or unsecured[.]”
11 USC § 101(5).
The trustee of the bankruptcy estate administers
the estate to satisfy claims made by creditors against it.
Id. § 323. To that end, a debtor must schedule his or her
assets so that creditors have “sufficient notice of the assets
available to satisfy their claims.” Vucak, 194 Or App at 570.
500 Concienne v. Asante
If the trustee who represents the estate does not dispose of
a scheduled asset when the bankruptcy case is closed, that
asset is deemed “abandoned by the trustee” and returned to
the debtor. Caplener v. U.S. National Bank, 317 Or 506, 517,
857 P2d 830 (1993) (citing 11 USC § 554(c)).2
But a debtor’s nonexempt property belongs to the
estate whether or not it is scheduled. Indeed, if the trustee
does not dispose of an unscheduled asset by the close of the
case, that asset remains the property of the bankruptcy
estate and does not revert to the debtor unless the trustee
later abandons the asset. 11 USC § 554(d);3 see Vucak, 194
Or App at 571 (“Because plaintiff’s personal injury claim
never was properly scheduled, it was not abandoned to her
by the bankruptcy trustee.”).
As to legal claims that a debtor might have against
third parties that are property of the estate, the bankruptcy
trustee is the real party in interest to the exclusion of the
debtor and has standing to pursue those claims or is entitled
to abandon them. Vucak, 194 Or App at 571-72; see Padrick
v. Lyons, 277 Or App 455, 465, 485, 372 P3d 528, rev den,
360 Or 26 (2016) (“[The] bankruptcy trustee stands in [the]
shoes of the bankrupt party in asserting claims owned by
[the] debtor.” (Citing Ahcom, Ltd. v. Smeding, 623 F3d 1248,
1250 (9th Cir 2010).)). Unless and until a claim is abandoned
by the trustee, the debtor lacks standing to pursue the claim
him- or herself even after the close of the bankruptcy case.
See Vucak, 194 Or App at 571-72; Kane v. National Union
Fire Ins. Co., 535 F3d 380, 385 (5th Cir 2008) (“[A] trustee,
as the representative of the bankruptcy estate, is the real
party in interest, and is the only party with standing to
prosecute causes of action belonging to the estate once the
bankruptcy petition has been filed.”).
2
11 USC section 554(c) provides:
“Unless the court orders otherwise, any property scheduled under section
521(a)(1) of this title not otherwise administered at the time of the closing of
a case, is abandoned to the debtor.”
3
11 USC section 554(d) provides:
“Unless the court orders otherwise, property of the estate that is not
abandoned under this section and that is not administered in the case
remains property of the estate.”
Cite as 299 Or App 490 (2019) 501
B. Standing
Before we explain why plaintiff lacked standing to
pursue the medical malpractice claim, we first must address
the two primary arguments raised by plaintiff for why we
should not consider defendant’s standing argument, both of
which we reject.4
1. The Court of Appeals has an independent obligation
to consider standing.
Plaintiff’s first argument is that we should not con-
sider whether he had standing because the trial court did
not decide that issue. However, as noted, we have an inde-
pendent obligation to consider jurisdictional issues, includ-
ing standing. Alto, 247 Or App at 648. Because standing
entails whether the plaintiff has a right to have his or
her claim adjudicated by the trial court, Kellas, 341 Or at
476-77, and a plaintiff with no standing “has no right to
have [the court] decide [his or her] claim,” Eckles, 306 Or at
383, we must decide that question regardless of whether the
trial court reached it.
2. The medical malpractice claim accrued prior to
plaintiff’s bankruptcy case; therefore, the claim is the
property of plaintiff’s bankruptcy estate.
Plaintiff’s second challenge to defendant’s standing
argument speaks to whether plaintiff personally had the
right to have the trial court adjudicate the medical malprac-
tice claim. Plaintiff contends that the claim belongs to him
rather than the bankruptcy estate because, at the time of
his bankruptcy case, the claim had not accrued. Specifically,
plaintiff argues that he did not have “sufficient knowledge to
discover the claim * * * for statute of limitations purposes,”
and “he shouldn’t be held to a higher standard for disclosing
4
Plaintiff also makes the single-sentence argument that he has standing
due to an exemption in the Bankruptcy Code under 11 USC section 522(d)(11)(D),
which provides for a limited right to receive a payment on account of personal
bodily injury. We decline to address that undeveloped argument. Bazzaz v.
Howe, 262 Or App 519, 529, 325 P3d 775, rev den, 356 Or 397 (2014) (“[B]ecause
plaintiff’s argument is undeveloped, we decline to address it.”); Beall Transport
Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193 (2003)
(explaining that it is not our function to “to make or develop a party’s argument
when that party has not endeavored to do so itself”).
502 Concienne v. Asante
[the claim] in bankruptcy proceedings.” As we understand
it, plaintiff’s argument is that an Oregon bankruptcy debt-
or’s negligence claim is property of the estate only if the
statute of limitations has started to run on the claim prior
to the bankruptcy case.
Plaintiff is correct to the extent that, under Oregon
law, a plaintiff must have the requisite knowledge to dis-
cover a negligence claim before it accrues, Greene v. Legacy
Emanuel Hospital, 335 Or 115, 123, 60 P3d 535 (2002), and,
as a general rule, “a debtor has no duty to schedule a cause
of action that did not accrue” under the applicable state
law prior to bankruptcy, Cusano, 264 F3d at 947.5 However,
plaintiff is not correct that his claim had not yet accrued
when he filed for Chapter 7 bankruptcy. As explained below,
the record demonstrates that, as a matter of law, plaintiff
either had discovered, or in the exercise of reasonable care
should have discovered, his claim against Kather before he
filed for Chapter 7 bankruptcy.
In Oregon, “a medical malpractice action accrues
‘when the injury is first discovered or in the exercise of rea-
sonable care should have been discovered.’ ” Kastle v. Salem
Hospital, 284 Or App 342, 347, 392 P3d 374 (2017) (quoting
ORS 12.110(4)). Under ORS 12.110(4), an “injury” “consists
of harm, causation, and tortious conduct.” Id. (citing Gaston
v. Parsons, 318 Or 247, 255, 864 P2d 1219 (1994)). Therefore,
“a medical malpractice claim accrues, and the statute of
limitations begins to run, when the plaintiff knows or, in
the exercise of reasonable care, should have known facts
which would make a reasonable person aware of a substan-
tial possibility that (1) plaintiff suffered harm, (2) the harm
was caused by the defendant’s acts, and (3) the defendant’s
acts were tortious.”
5
The court in Cusano goes on to explain, without further clarification, that
accrual in the bankruptcy context can be distinguished from “principles of discov-
ery and tolling, which may cause the statute of limitations to begin to run after
accrual has occurred for purposes of ownership in a bankruptcy proceeding.” 264
F3d at 947 (citing In re Swift, 129 F3d 792, 796 (5th Cir 1997)). However, in light
of the fact that federal courts look to state law to determine whether a claim has
accrued in a bankruptcy proceeding, and, as explained below, in Oregon accrual
and discovery are inextricably intertwined with respect to negligence claims, we
do not see any way to determine whether the claim in this case had “accrued” in
the context of the bankruptcy case without application of the discovery rule that
applies under Oregon law to plaintiff’s claim.
Cite as 299 Or App 490 (2019) 503
Id. (citing Gaston, 318 Or at 255). In short, discovery and
accrual are inextricably linked with respect to medical mal-
practice claims, and a claim cannot accrue before a plaintiff
discovers it or discovery can be imputed to the plaintiff.
Application of the discovery rule is “a factual issue
for the jury unless the only conclusion a reasonable jury
could reach is that the plaintiff knew or should have known
the critical facts at a specified time and did not file suit
within the requisite time thereafter.” T. R. v. Boy Scouts of
America, 344 Or 282, 296, 181 P3d 758, cert den, 555 US 825(2008). A plaintiff’s “mere suspicion” that a tortious injury
has occurred is “insufficient to commence the period of lim-
itations.” Greene, 335 Or at 124 (citing Gaston, 318 Or at 256).
But “it is not necessary that a plaintiff know ‘to certainty’
the precise nature of [a] claim” before it can be deemed that
the plaintiff has discovered it, i.e., that the plaintiff knew
or should have known the critical facts that gave rise to the
claim. Holdner v. Oregon Trout, Inc., 173 Or App 344, 352,
22 P3d 244 (2001) (citing Gaston, 318 Or at 255). Nor must
a plaintiff “know the full extent of the harm” or know that
the critical facts of which they are aware have any specific
“legal significance.” Smith v. OHSU Hospital and Clinic, 272
Or App 473, 481, 356 P3d 142 (2015); see Laird v. Stroot,
188 Or App 118, 123, 71 P3d 105 (2003) (explaining that,
to meet the “knew or should have known” element of the
discovery rule, the plaintiff “did not need to have known,
or have reason to know, the precise theory of recovery, only
that the [defendant] had acted tortuously”). Rather, discov-
ery of a claim is imputed to a plaintiff who has been injured
by another when the plaintiff becomes aware that there is
a substantial possibility that a “legally protected interest
to be free from physical harm at the hands of another ha[s]
been infringed.” Greene, 335 Or at 124.
In this case, we conclude that no reasonable fact-
finder could find that the medical malpractice claim against
Kather accrued later than the filing of plaintiff’s Chapter 7
bankruptcy petition. Plaintiff alleged in his complaint
that he was injured when he was hospitalized and forced
to undergo an avoidable surgery due to mistakes made by
Kather during his treatment of plaintiff. According to plain-
tiff’s own deposition testimony, he “rather quickly” blamed
504 Concienne v. Asante
Kather and decided “within a couple of months” after he
was hospitalized and underwent a complete colectomy that
Kather had “made mistakes” during the course of plaintiff’s
care that had resulted in his hospitalization and necessi-
tated that life-altering surgery. During that same time
period, plaintiff had decided that Kather was negligent.
According to plaintiff’s testimony, plaintiff “didn’t rush” to
file a lawsuit—and initially did not think it was “likely” that
he would file a lawsuit—not because he was unaware of the
fact that he had been injured or even the possibility that
Kather was at least partially responsible for those injuries
but because he knew that a lawsuit would “affect” Kather’s
life. Similarly, in a later declaration, plaintiff explained that
he had waited to file a lawsuit against Kather for personal
reasons—that he “liked [Kather] as a person,” and it was
not in his nature “to be sue happy and cause problems for
[Kather].”
Under the foregoing circumstances, plaintiff’s argu-
ment that he did not know that there was a substantial pos-
sibility that Kather’s conduct had been tortious until after
plaintiff’s Chapter 7 bankruptcy case, which plaintiff ini-
tiated over six months after his surgery, cannot succeed as
a matter of law. Plaintiff was aware, well before his bank-
ruptcy case, of the harm he had suffered—a hospitaliza-
tion and surgery—and his testimony demonstrates that he
believed that Kather’s care had been negligent and contrib-
uted to that harm. Put differently, plaintiff had more than a
“mere suspicion” that Kather had inflicted a tortious injury
on him; indeed, he “rather quickly” blamed Kather for that
injury and decided “within a couple of months” after he was
discharged that Kather had “made mistakes.”
Unlike some medical malpractice cases, plaintiff’s
case against Kather does not turn on whether mistakes
were made during his hospitalization and surgery that
caused plaintiff harm of which he might reasonably have
been unaware until a later date. Cf. Kastle, 284 Or App at
354 (explaining that “ ‘a reasonable person [who] experi-
ences symptoms that are incidental to a particular medical
procedure may not be aware that he or she has been a vic-
tim of tortious conduct’ ” until a later date (quoting Gaston,
Cite as 299 Or App 490 (2019) 505
318 Or at 256-57)). Instead, plaintiff’s complaint alleges
that Kather’s conduct—specifically, his misdiagnosis and
treatment for RAD rather than PCP—was harmful and tor-
tious because it necessitated plaintiff’s hospitalization and
the removal of his colon. There is no dispute that plaintiff
was aware of those critical facts before his Chapter 7 bank-
ruptcy and blamed Kather for the outcome. Plaintiff was
aware of the harm, blamed Kather for it, and ascribed the
harm to Kather’s mistake. See Kastle, 284 Or App at 347-
48 (describing elements for accrual of a medical malpractice
claim as reasonable knowledge of harm, causation, and tor-
tious conduct).
Finally, plaintiff in his declaration explained that he
denied having any claims during his Chapter 7 bankruptcy
case because he “hadn’t hired an attorney to investigate or
pursue any claims,” he did not have “any lawsuits pending,”
and he “didn’t think it would come to [him] bringing litiga-
tion against [Kather].” As explained, discovery of a claim
can be imputed to a plaintiff who does not yet understand
the legal significance of the facts giving rise to the claim so
long as he or she is aware of those facts or should be aware of
them in the exercise of reasonable care. Smith, 272 Or App
at 481 (explaining that, when a plaintiff argues that the
statute of limitations on a negligence claim had not begun
to run as of a particular date, “ ‘an argument that the plain-
tiff did not know the full extent of the harm or that those
facts [known to the plaintiff] had legal significance will be
of no avail’ ” (quoting Doe v. Lake Oswego School District,
353 Or 321, 335, 297 P3d 1287 (2013))). Plaintiff knew in the
months before he filed for Chapter 7 bankruptcy substan-
tially all of the critical facts underpinning his medical mal-
practice claim against Kather—including that Kather had
misdiagnosed plaintiff and erroneously treated him on the
basis of that misdiagnosis for several months. In short, the
fact that plaintiff did not know the precise legal significance
of those facts because he had not consulted with an attorney
does not affect our conclusion that plaintiff discovered the
claim before his Chapter 7 bankruptcy case.
To summarize, we conclude that, as a matter of law,
plaintiff discovered the medical malpractice claim against
506 Concienne v. Asante
Kather prior to filing his Chapter 7 bankruptcy petition.6
Cf. Laird, 188 Or App at 125 (explaining that, when the
plaintiff learned that the defendant-doctor had left gauze in
the plaintiff’s foot following an operation and did not have
reason to believe that leaving the gauze in his foot was part
of the course of treatment, the plaintiff’s knowledge of those
facts “constituted knowledge that he had suffered harm as
a consequence of defendants’ tortious conduct and triggered
the running of the statute [of limitations]”). Accordingly, we
conclude that the medical malpractice claim against Kather
accrued prior to plaintiff’s Chapter 7 bankruptcy case, and
we reject plaintiff’s argument to the contrary. Because the
claim accrued prior to plaintiff’s Chapter 7 bankruptcy case
and plaintiff failed to include it on his schedule of assets
when he completed his bankruptcy petition, the claim was
and remains the unabandoned property of plaintiff’s bank-
ruptcy estate. Cusano, 264 F3d at 945-46 (“If [the debtor]
failed properly to schedule an asset, including a cause of
action, that asset continues to belong to the bankruptcy
estate and did not revert to [the debtor].”).
3. Plaintiff does not have standing to bring the medical
malpractice claim.
We turn to whether plaintiff had standing to pur-
sue the medical malpractice claim notwithstanding that,
because the claim had accrued prior to his Chapter 7 bank-
ruptcy petition, it was and remains the unabandoned prop-
erty of the estate.7 Because the estate owns the claim, the
bankruptcy trustee has stepped into plaintiff’s shoes and
has standing to pursue the claim or may abandon it. Ahcom,
Ltd., 623 F3d at 1250 (explaining that the trustee “stands in
the shoes of the [debtor] and has standing to bring any suit
that the [debtor] could have instituted had [he or she] not
6
We do not decide if or when the statute of limitations has fully run on plain-
tiff’s medical malpractice claim. As explained below, the claim is an unabandoned
asset that belongs to plaintiff’s bankruptcy estate, and our decision here does
not determine whether the claim would be timely if brought by the bankruptcy
trustee or abandoned by the trustee and brought by plaintiff at some future date.
7
There is no evidence in the record that the trustee has abandoned the
claim, and plaintiff does not argue otherwise. Indeed, plaintiff offered in the trial
court that he would be willing to reopen the bankruptcy case to allow the trustee
to pursue the claim, but the court granted defendant’s motion for summary judg-
ment on other grounds.
Cite as 299 Or App 490 (2019) 507
petitioned for bankruptcy” (internal quotation marks omit-
ted)). Plaintiff has no independent authority to personally
bring the claim unless it is abandoned to him by the trustee.
Vucak, 194 Or App at 571-72. In other words, plaintiff does
not have an independent “right to obtain an adjudication”
or to personally “have a tribunal decide the claim,” because
that right resides exclusively with the bankruptcy trustee
by operation of the Bankruptcy Code. See Eckles, 306 Or
at 383 (stating standing requirements). It necessarily fol-
lows that plaintiff is not the “real party in interest,” and the
trial court should have dismissed the complaint for lack of
standing.8 See Vucak, 194 Or App at 571-72 (explaining that
the plaintiff was not the “real party in interest” and lacked
standing where the bankruptcy estate owned the claim).
Judgment vacated and remanded with instructions
to dismiss the complaint for lack of standing.
8
Based on our disposition, we do not address whether plaintiff’s claim was
barred by principles of judicial estoppel. Cf. Vucak, 194 Or App at 572 n 5 (“As we
have determined that plaintiff is not the real party in interest in the personal
injury action, it is unnecessary for us to address [the defendant’s judicial estop-
pel] argument.”).