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Kahn v. Providence Health Plan6/12/2003
ility, and depression that allegedly was so severe that it required hospitalization, all allegedly suffered because of the delay that was occasioned by defendant's decision. Defendant moved for summary judgment, arguing, inter alia, that (1) a workers' compensation statute, ORS 656.260(14), provided plaintiff's sole remedy for her injuries; (2) ORS 656.018(3) exempts defendant from liability as a "contracted agent" of plaintiff's employer's insurer; and (3) defendant has no contractual relationship with plaintiff that could form the basis of a breach of contract claim. The trial court granted defendant's motion, explaining that, as a matter of law, "plaintiff's exclusive remedy for injuries related to a service utilization review is under the workers['] compensation statutes."
On plaintiff's appeal, the Court of Appeals affirmed. That court held that, regardless of how plaintiff characterizes her claims, both arise out of defendant's service utilization decision which, under ORS 656.260(6), is subject "solely" to "review" by the Director of the Department of Consumer and Business Services "or as otherwise provided in this section." The Court of Appeals concluded that, because no other provision of the statute fairly could be read to provide for review of such a decision by means of a civil action for damages, the trial court's conclusion that plaintiff's remedy lies exclusively under the workers' compensation statutes was correct. Kahn v. Providence Health Plan, 170 Or App at 606-08.
Before this court, plaintiff argues that the Court of Appeals oversimplified her claims as merely seeking "review" of the correctness of defendant's service utilization decision. Plaintiff contends that, in fact, she is seeking damages, under common-law claims for medical malpractice and breach of contract, for the pain and suffering that she was forced to endure because of the delay that defendant's decision engendered. She argues that ORS 656.260(6), the statute on which the Court of Appeals relied, does not address such issues or preclude a civil action for damages.
We begin by noting that the Court of Appeals incorrectly treated the provisions of ORS 656.260(6) as dispositive. That statute is a procedural one that sets out the route that a dissatisfied claimant must follow through the apparatus of the workers' compensation system to obtain review of a utilization review decision. That statute is not substantive; it does not forbid actions such as the one that plaintiff brought here. However, we further note that, although plaintiff objects to the Court of Appeals' characterization of her claims, she does not deny that the record made on summary judgment shows that both claims arose out of defendant's conclusion, made in the context of a "service utilization review," that the surgery that plaintiff's doctor proposed was not medically necessary. In our view, that fact implicates another, related subsection of ORS 656.260 that is substantive.
ORS 656.260(8) provides:
"A person participating in service utilization review, quality assurance, dispute resolution or peer review activities pursuant to this section shall not be examined as to any communication made in the course of such activities or the findings thereof, nor shall any person be subject to an action for civil damages for affirmative actions taken or statements made in good faith."
(Emphasis added.) Defendant is a "person" for the purposes of that statute. See ORS 656.005(23) (respecting ORS chapter 656, "' erson' includes partnership, joint venture, association, limited liability company and corporation"). Thus, by the express terms of ORS 656.260(8), defendant is immune from this action for civil dama
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