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Kahn v. Providence Health Plan6/12/2003
ges if defendant's determination that plaintiff's proposed surgery was unnecessary was "participation" in a service utilization review, was an "affirmative action ," and was "taken * * * in good faith." On the present record, there is no evidentiary question whether defendant participated in service utilization review or whether defendant acted in bad faith; therefore, plaintiff's claims against defendant fail if defendant's decision was an "affirmative action ."
In our view, it was. The Workers' Compensation Law, ORS chapter 656, contains no definition of the term "affirmative actions." We therefore assume that, in using it, the legislature intended that it be understood in the ordinary, dictionary sense. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (prescribing that methodology for identifying legislative intent respecting words of common usage).
"Action" means "* * * 3. The process of doing: exertion of energy: PERFORMANCE * * *[;] 4. a voluntary act that will manifest itself externally." Webster's Third New Int'l Dictionary 21 (unabridged ed 1993). Without question, the decision that defendant made to recommend against surgery for plaintiff was an "action" under that definition, i.e., it was a "voluntary act * * * manifest itself externally" in an opinion, and forming and offering such opinions was precisely what defendant had agreed that it would do for Industrial Indemnity.
Read in context, the statutory requirement that the action be "affirmative" does not change our analysis. Although that word might, in different circumstances, be a reference only to the outcome of an opinion, i.e., it could be a reference only to a decision to approve a proposed medical procedure, the word cannot be read that way when it is used in connection with the phrase "actions taken." Conceptually, the phrase "actions taken" is broader than a decision to approve (or even to disapprove) something. That is, the term is to be read in contrast with a failure to decide or other neglect. That broader reading of the term being the only tenable one, it follows that there is no factual basis on this record that would remove plaintiff's case from the immunity provided in ORS 656.620(8). That is, nothing in this record raises any factual issue whether defendant's conduct amounted to something more than an "affirmative action taken * * * in good faith."
We recognize that the foregoing conclusion means that ORS 656.260(8) grants immunity to defendant on the facts shown here. However, that is the extant legislative choice, as shown by the statutory wording. If that choice is to be changed or modified, that, too, must be a legislative choice. We hold that, on the present evidentiary record, defendant is immune from the action that plaintiff has brought against it in this case by virtue of the immunity that ORS 646.620(8) confers.
Ordinarily, the foregoing holding would dispose of the case. However, we are reluctant to direct that result here, because the specific statutory subsection on which we rely -- ORS 656.260(8) -- was not the ground on which either the trial court or the Court of Appeals decided this case. Although it is not clear to us how plaintiff might avoid the immunity conferred by that statute, we do not believe that it would be just to deny her at least the opportunity to try. We therefore remand the case to the trial court with instructions to consider any factual or legal argument that plaintiff may wish to assert respecting the application of ORS 656.260(8) to her case.
The decision of the Court of Appeals and the judgment of the circuit court are reversed. The case is remanded to the circuit court for further proceedin
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