Zavalas v. State Ex Rel. Department of Corrections

LEESON, J.

In these consolidated cases, plaintiffs appeal a summary judgment dismissing their negligence and wrongful death actions against physician Roger Smith (defendant). On review of a summary judgment, we determine whether the moving party is entitled to judgment as a matter of law. We view any evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993). We reverse.

Plaintiff Zavalas is the personal representative of two children who died when Donna Shonkwiler struck them wdth her automobile. Plaintiff Olivares is the guardian ad litem of two other children injured in the same incident. Individual plaintiffs Benjamin J. Olivares and Maria Cruz Jimenez are the parents of the injured children. Defendant treated Shonkwdler prior to the accident.

On June 14, 1988, Shonkwdler, who was on probation for a 1985 conviction for possession of heroin, had an appointment wdth defendant at his office. Shonkwiler made the appointment because a neighbor had told her that defendant was “easy” about prescribing the psychoactive drug Xanax. About an hour before the appointment, Shonkwiler injected herself wdth heroin. During the appointment she “cried and cried and cried.” She described her symptoms and depression. She also told defendant that in the past she had taken a number of prescription drugs, including lithium, Limbitrol, Mellaril, Valium and Xanax.

Defendant met wdth Shonkwdler for approximately 45 minutes. He estimated that about 20 minutes into their meeting she began to cry, and recounted that it was difficult to get answers from her. Defendant did not conduct a physical examination of Shonkwdler, so did not notice needle marks on her arms from injecting drugs. Neither did he obtain a complete history, because “to obtain history and do a proper examination would have taken the rest of the morning, and I didn’t have the rest of the morning.”¹ At the end of their meeting, defendant gave Shonkwiler a prescription for 100 tablets of Xanax to help control her anxiety. He prescribed that quantity because Shonkwiler told him that she had difficulty with transportation and because the drug was less expensive when purchased in quantity.

Three days later, Shonkwiler called defendant’s office and the Beaverton Police Department and reported that her purse and Xanax prescription had been stolen. The police department confirmed the report and offered to pay for a refill from its reserve fund. Defendant authorized a drug store to dispense a refill.

On the evening of June 19, 1988, Shonkwiler attempted suicide by an overdose of Xanax and heroin. The next day, with Xanax, heroin, cocaine and marijuana in her system, she drove her car and struck the children.

Plaintiffs executed a covenant not to sue Shonkwiler and filed these claims against defendant. In their amended complaint, plaintiffs alleged that he was negligent in prescribing Xanax to Shonkwiler when she presented symptoms of “psychotic illness, depression, chronic bipolar mental disorder and chronic drug use,” and in authorizing the refill of that prescription. They alleged that, as a foreseeable result of defendant’s negligence, Shonkwiler drove her car while under the influence of Xanax, and that Xanax was a substantial factor in impairing her ability to drive safely.

Defendant did not answer. Instead, he filed various motions under ORCP 21, including a motion to dismiss for failure to state a claim. ORCP 21A(8). That motion was denied. Defendant then moved for summary judgment. He argued that, regardless of whether his conduct unreasonably created a foreseeable risk of the type of harm suffered, as a physician he owes no duty to nonpatients. The trial court granted that motion.²

Determining whether summary judgment was appropriate requires us to examine the role of “duty” and “no duty” in negligence cases involving a defendant physician and plaintiffs who are not patients of that physician. The Supreme Court in Fazzolari v. Portland School District No. 1J, 303 Or 1, 734 P2d 1326 (1987), held that unless a status, relationship or particular standard of conduct creates, defines or limits a defendant’s responsibility, the issue of liability for harm resulting from a defendant’s conduct properly depends on whether the conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell a plaintiff. The court concluded that “[d]uty remains a formal element of the plaintiffs claim only in the sense that the plaintiff loses if the defendant persuades a court to phrase such a limit in terms of ‘no duty.’ ” 303 Or at 10.

The court elaborated on the “no duty” defense in Donaca v. Curry Co., 303 Or 30, 734 P2d 1339 (1987). It characterized “no duty” defenses as being of two kinds:

“Sometimes ‘no duty’ excludes whole categories of claimants or of claims, for instance economic or psychic loss caused by physical injury to another person. At other times ‘no duty’ refers narrowly to an aspect of the particular circumstances before the court. This often amounts to a claim that no rational factfinder could find defendant’s conduct unreasonably to pose a foreseeable risk to the plaintiff but does not really assert any categorical rule.” 303 Or at 32-33. (Footnote omitted.)

The “no duty” defense asserted by defendant is of the first kind. According to him, an entire category of claimants — nonpatients—is prohibited from recovering against a physician for alleged acts of negligence in treating a patient. He asks us to hold, as a matter of law, that a physician has no duty to third parties and, therefore, that a physician is shielded from liability to third parties who claim that the physician’s negligent treatment of a patient was the foreseeable cause of their harm.

Defendant makes three arguments in support of his theory that a physician can never be liable to nonpatients. The first is that physicians are shielded from liability to third persons by the standard of care they owe to their patients. That standard is articulated in ORS 677.095, which provides:

“A physician * * * licensed to practice medicine * * * has the duty to use that degree of care, skill and diligence which is used by ordinarily careful physicians * * * in the same or similar circumstances in the community of the physician * * * or a similar community.”

In construing a statute, our responsibility is “simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted.” ORS 174.010. We generally apply clear, unambiguous statutes according to their plain meaning, without resort to extrinsic evidence of legislative intent, unless literal application would produce an absurd or unreasonable result. Satterfield v. Satterfield, 292 Or 780, 643 P2d 336 (1982).

ORS 677.095 declares the duty of care that licensed physicians must satisfy when engaged in the practice of medicine in Oregon. It holds physicians to the degree of care, skill and diligence of ordinarily careful physicians in the community of the physician or a similar community. The language of the statute states the nature of the physician’s duty of care. It is notably silent about the extent or reach of that duty. Defendant would have us read into the statute language that is conspicuously absent regarding the extent of the physician’s duty. We are not at liberty to do so. ORS 174.010. Defendant’s reliance on ORS 677.095 in support of his defense of “no duty” is misplaced.

Defendant next argues that, “in the absence of a physician-patient relationship, plaintiffs simply have no claim for medical negligence against [defendant].”³ Defendant cites only one authority for that position, Webb v. Jarvis, 575 NE2d 992 (Ind 1991). Defendant is correct that the Indiana court held that a physician who had prescribed anabolic steroids for a patient who subsequently became violent and injured a third party was not liable to the third party under the facts of that case. However, the court explicitly rejected the position that defendant would have us adopt. It said, “[W]e agree with [plaintiff] that the lack of privity between him and [defendant physician], alone, does not mandate the conclusion that there was no duty.” 575 NE2d at 996. It concluded that, although physicians generally do not owe a duty to unknown nonpatients who may be injured by the physician’s treatment of a patient, “[t]his conclusion should not be interpreted as inoculating physicians so as to give them complete immunity against third person claims.” Justice Dickson concurred, saying:

“I concur separately to reflect my understanding that by our opinion today this Court does not intend to unequivocally declare that physicians generally have no duty toward unknown third persons foreseeably at risk of injury resulting from the negligent administration or prescription of medication.” 575 NE2d at 998.

Like the court in Webb and courts in several other jurisdictions, we reject defendant’s position that under no circumstances can a physician ever be liable to a nonpatient third party. See, e.g., Watkins v. United States, 589 F2d 214 (5th Cir 1979); Welke v. Kuzilla, 144 Mich App 245, 375 NW2d 403 (1985); Wharton Transport Corp. v. Bridges, 606 SW2d 521 (Tenn 1980). Defendant offers no basis for holding that, under the particular circumstances of this case, he should prevail on his “no duty” defense.

Finally, defendant contends that our decision in Doe v. Portland Health Centers, Inc., 99 Or App 423, 782 P2d 446 (1989), rev dismissed 310 Or 476 (1990), “is dispositive” of plaintiffs’ claims. In Doe, the defendant disclosed to a third person that the plaintiffs daughter had been hospitalized after a suicide attempt. The plaintiff, a practicing psychologist, claimed that she suffered business losses, loss of reputation and emotional distress because of the disclosures. She maintained that the duty of confidentiality owed to her daughter extended to her. We affirmed the trial court’s grant of the motion to dismiss the plaintiffs claim, and held that, under the facts of that case, the defendant’s statutory duty of confidentiality, ORS 677.190(5), did not extend beyond the patient with respect to the disclosure.

We disagree with defendant that the holding in Doe can be generalized to support his theory that under no circumstances can a physician be held liable to third parties for the negligent treatment of a patient.⁴ In Doe, we declined the invitation “to attempt to define the scope of the duty [of confidentiality] under all circumstances [.]” 99 Or App at 426.

Defendant’s contention that as a physician he is shielded from plaintiffs’ allegations in this case by the defense of “no duty” fails for the reasons explained above. Defendant was not entitled to summary judgment.⁵ Because this appeal from summary judgment is before us only on defendant’s “no duty” theory, we do not address whether plaintiffs’ allegations are sufficient to support the claim that defendant’s negligence was the foreseeable cause of their harm.⁶

Reversed and remanded.

1 ORS 677.190(25) provides that the Board of Medical Examiners may suspend or revoke a license to practice medicine in Oregon for “prescribing controlled substances * * * without following accepted procedures for examination of patients * * * >)

2 Defendant’s motion for summary judgment presented purely legal issues. The dissent contends, nonetheless, that the trial court granted summary judgment on the ground that plaintiffs’ injuries were unforeseeable. Because the language used by the trial court is ambiguous, we think it more reasonable to conclude that the motion was granted on the ground upon which it was argued. We treat the judgment as such. Moreover, if the trial court had granted summary judgment on the basis of the unforeseeability of plaintiffs’ injuries, that would have been error. Because defendant did not contest the foreseeability of plaintiffs’ injuries, plaintiffs were not required to present proof on that issue in order to withstand the motion. Reed v. Jackson County, 105 Or App 24, 31-32, 803 P2d 1194 (1990), rev den 311 Or 261 (1991).

3 Defendant acknowledges one exception to that argument; namely, the physician’s duty to warn. See Docken v. Ciba-Geigy, 86 Or App 277, 739 P2d 591, rev den 304 Or 405 (1987). Defendant emphasizes that “[tjhis case, however, is not a failure to warn case.”

4 Cf. Docken v. Ciba-Geigy, supra, where we held that a physician’s liability for negligently failing to warn of the dangers of a prescription drug extends to anyone foreseeably injured by that negligence. In that case, the defendant’s claim of “no duty” was not based on any statute, status or rule. We characterized the “no duty” defense as merely another way of stating that the harm suffered by a boy who used a drug prescribed for his brother was not a foreseeable risk of the conduct alleged as negligence in the plaintiffs complaint.

5 The dissent would conclude that defendant was entitled to summary judgment due to the insufficiency of the plaintiffs’ allegations of foreseeability. However, on appeal from a summary judgment, we do not review the sufficiency of the pleadings. We review to determine whether there is any genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Park v. Hoffard, 315 Or 624, 627, 847 P2d 852 (1993).

6 Nothing in Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993), affects our decision in this case. The dissent is correct that, at the trial court level, Buckler was resolved by summary judgment, as was this case. It does not contend that the comparison goes any further. We agree.