Opinion
3:19-cv-01983-AC
05-10-2021
JAMES W. FRANSON II, Plaintiff, v. UNITED STATES, Defendant.
FINDINGS AND RECOMMENDATION
VJOHNV.ACOSTA UNITED STATES MAGISTRATE JUDGE
Introduction
Plaintiff James W. Franson (“Franson”), filed this lawsuit pro se against the United States Dept. of Veteran Affairs, Portland VAMC/CEOC (“Department”) and Daniel Hoonyul Bang, M.D. (“Dr. Bang”). In a previous Findings and Recommendation dated January 7, 2020 (“F&R), this court recommended Franson's complaint filed December 6, 2019 (“Complaint”), be dismissed for lack of subject matter jurisdiction and failure to state a claim for relief. Franson v. U.S. Dept. of Veterans Affairs, No. 3:39-cv-01983-AC, 2020 WL 428154 (D. Or. Jan. 7, 2020). Judge Michael H. Simon adopted the F&R on January 27, 2020, dismissed the Complaint without prejudice, and provided Franson the opportunity to file an amended complaint within thirty days. Franson v. U.S. Dept. of Veterans Affairs, No. 3:39-cv-01983-AC, 2020 WL 423388 (D. Or. Jan. 27, 2020). Franson filed an amended complaint on February 27, 2020, which the Department, Dr. Bang, and the United States (collectively “Defendants”) moved to dismiss. On September 22, 2020, the court granted Franson's motion to file yet another amended complaint and denied Defendants' pending, and fully briefed, motion to dismiss as moot. (Order dated September 22, 2020, ECF No. 26.) The clerk filed Franson's proposed second amended complaint on September 22, 2020 (“Amended Complaint”). Currently before the court is Defendants' renewed motion to dismiss for lack of subject matter jurisdiction and failure to state a claim for relief.
The court finds Franson named the United States as the sole defendant in the Amended Complaint and the court lacks subject matter jurisdiction over Franson's breach of contract claim against the United States. Accordingly, the motion to dismiss for lack of subject matter jurisdiction should be denied as moot with respect Franson's tort claims against the Department and Dr. Bang, and granted with respect to Franson's breach of contract claim against the United States. Additionally, the court finds Franson failed to allege the material terms of a contract, that Defendants were a party to the alleged contract, or actionable defamatory statements made by Defendants, but that he has adequately alleged a malpractice claim or, alternatively, should be allowed to amend the Amended Complaint to include the necessary allegations identified by Defendants. Consequently, the motion to dismiss for failure to state a claim should be denied with respect to Franson's medical malpractice claim and granted with respect to Franson's breach of contract and libel claims.
Background
In the F&R, the court described Franson's claims as alleged in the Complaint in the following manner:
Franson, a VA benefits recipient, filed this lawsuit on December 6, 2019. The Complaint is difficult to decipher, but appears to bring claims for medical malpractice, breach of contract, and libel stemming from the Defendants' decision to discontinue the use of opioids in the treatment of Franson's chronic pain. Specifically, the Complaint alleges that in 2011, a VA physician prescribed Franson opioids for pain management despite Franson's admission that he consumed cannabis. (Compl., at 1-2.) In the years that followed, the physician continued to prescribe opioids for Franson's pain, and presumed Franson would test positive for Tetrahydrocannabinol (“THC”), the primary psychoactive ingredient in cannabis, in any drug screenings conducted by the VA. (Compl., at 2.) In 2015, Dr. Bang assumed responsibility for Franson's care. (Id.) Dr. Bang did not immediately conduct an in-person consultation to evaluate Franson, but nevertheless refused to continue the opioid regimen in light of Franson's continued cannabis use. (Id.) Franson therefore was given no choice “but to quit cannabis to continue opioid therapy.” (Id.) Franson “refused [Dr.] Bang's requirement, ” and opioids were no longer prescribed to manage Franson's pain. (Id.) At the same time, the “SoCal Regional VA” adopted a new “cannabis/opiate” policy that was never implemented by the regional VA in the Pacific Northwest. (Id. at 3, 5.) Though the Complaint alleges this new policy exists, a copy of the policy is not attached to the Complaint, nor is its substance communicated in the body of the Complaint. (Id.)
Franson alleges his original physician's willingness to prescribe opioids despite his cannabis use constitutes a “valid opioid contract” that was subsequently violated by Dr. Bang. (Id. at 5.) Further, Franson contends Dr. Bang's refusal to continue the opioid regimen without evaluating him in person is “a violation of medical ethics and a true case of malpractice[.]” Franson alleges all subsequent physicians overseeing his care have “compounded the problem by including LIBEL in Plaintiff's medical records[] in order to justify the revocation of the previously existing opioid agreement[.]” (Id. at 2-3.) Finally, Franson seeks to have “the [policy] changes adopted by the SoCal VA to be forcefully applied to the rest of the VA regions by federal court order” because “VA should [not] be allowed to have different policies in different regions of the US[.]” (Id. at 3.)Franson, 2020 WL 428154 at *1.
The court acknowledged the Veterans' Judicial Review Act, Pub. L. No. 100-687, div. A 102 Stat. 4105 (1988) (“VJRA”) “places the exclusive responsibility for review of decisions made by VA Regional Offices or the Board of Veterans' Appeals with the United States Court of Appeals for Veterans Claims” and “explicitly precludes other courts from hearing ‘all questions of law and fact necessary to a decision . . . that affects the provision of benefits[.]'” Franson, 2020 WL 428154 at *2. Consequently, the court found it lacked subject matter jurisdiction over “Franson's allegations concerning the failure of the VA Regional Office to adopt a new “cannabis/opioid” policy in the Pacific Northwest” and “allegations challeng[ing] the VA's refusal to honor his requests for opioids to treat his chronic pain while he continued to consume cannabis.” Id. at *3. The court similarly concluded it lacked subject matter jurisdiction over Franson's medical malpractice and libel claims under the Federal Tort Claims Act (“FTCA”) based on his failure to affirmatively allege exhaustion of administrative remedies and for failure to name the United States as the defendant. Id. The court rejected Franson's allegation “the Complaint is not subject to the restrictive review mandated by the VJRA because it ‘addresses broad . . . civil rights concerns about the manner of delivery of health care services regarding pain relief'”, noting the Complaint “fails to identify any Constitutional or statutory rights of which Franson was deprived” and, accordingly, “the Complaint, even liberally construed, contains no allegations giving rise to a claim under 42 U.S.C. § 1983 or 42 U.S.C. § 1985.” Franson, 2020 WL 428154 at *4. Finally, the court found Franson failed “to state a viable claim for breach of contract” because “[n]one of the allegations set forth in the Complaint . . . indicate a contract existed between Franson and Defendants.” Id.
In the Amended Complaint, Franson names the United States as the sole defendant in the caption, asserts the “United States Government is the only responsible party for the U.S. Department of Veterans Affairs, ” alleges the court has “jurisdiction to review the actions of Bang and the VA under 28 U.S.C. § 1346(b), ” and identifies both the date he filed “his initial notice of administrative claim under the FTCA” and the date of mailing a denial of tort claim. (Second Am. Compl., ECF No. 27 (“Am. Compl.”), ¶¶ 17, 19, 24, 25.) Franson also added allegations he and Dr. Glasser “entered into an opioid contract with an unwritten understanding that cannabis consumption would NOT violate the contract;” characterized his allegations that “Bang failed to ever complete an in-person evaluation of Plaintiff before making any changes to Plaintiff's prescription regimen, and by doing so, violated not only the canons of medical ethics as a physician, but also the existing opioid contract between Plaintiff and Defendant” which “directly caused Plaintiff's pain and suffering to increase substantially” as the “core” of his malpractice claim against the United States; and based his “libel and conspiracy” claim on the United States' encouragement of physicians to “get patients off opioids by any means possible (especially those patients who are known to consume cannabis), by encouraging physicians to include false statements and factual errors in Plaintiff's medical record, in order to justify the removal of opioids being prescribed.” (Am. Comp. ¶¶ 4, 9, 10, 13.) Franson omitted his request for injunctive relief seeking enforcement of the opioid contract and implementation of a nationwide policy, specifically stating he “rescinds his request from [the Complaint] for the U.S. District Court to make any decisions over the Veterans Administration policy wise, ” and included a new request for damages to reimburse the “OR state Medicaid program for Plaintiff's care of military injuries.” (Am Compl. ¶¶ 40, 50.)
Legal Standard
I. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and generally have jurisdiction only as authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.375, 377 (1994). Courts presume that a case “lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. Because subject matter jurisdiction involves the court's authority to hear a case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002). Accordingly, when a federal court finds that it lacks subject matter jurisdiction, it must dismiss the complaint in its entirety. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be either “facial” or “factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack on subject-matter jurisdiction, as asserted by Defendants here, the court resolves the motion as it would a motion to dismiss under Rule 12(b)(6). Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.1 (9th Cir. 2003). In a facial challenge, the court accepts the factual allegations of the complaint as true, draws all reasonable inferences in the plaintiff's favor, and “determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite, 749 F.3d at 1121.
II. Rule 12(b)(6) - Failure to State a Claim
A well-pleaded complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (2019). A federal claimant is not required to detail all factual allegations; however, the complaint must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. While the court must assume all facts alleged in a complaint are true and view them in a light most favorable to the nonmoving party, it need not accept as true any legal conclusion set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, a plaintiff must set forth a plausible claim for relief - a possible claim for relief will not do. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678); Sheppard v. David Evans and Assoc., No. 11-35164, 2012 WL 3983909, at *4 (9th Cir. Sept. 12, 2012) (quoting Iqbal, 556 U.S. at 679) (“The Supreme Court has emphasized that analyzing the sufficiency of a complaint's allegations is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'”).
The Ninth Circuit has instructed courts to “construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the court dismisses a complaint for failure to state a claim, the court should grant leave to amend “unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly sure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quotation marks and citation omitted).
Discussion
Defendants move to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim for relief. Specifically, Defendants argue Franson still identifies the Department and Dr. Bang as defendants in the body of the Amended Complaint despite the court's prior ruling it lacks jurisdiction over the Department and Dr. Bang under the FTCA; the Court of Federal Claims has exclusive jurisdiction over the breach of contract claim; and Franson fails to state a viable breach of contract, medical malpractice, and libel claims. Franson does not think his claim for breach of the opioid contract “should be in the purview of the U.S. Court of Federal Claims, ” as it “does not seem to have the same characteristics as a contract to build a structure or a roadway” and argues he has to identify the Department and Dr. Bang in the Amended Complaint to adequately allege his claims against the United States. Additionally, he asserts he has adequately alleged a “‘causal link' link between the ‘breach of duty' and ‘alleged harm'” based on his “numerous instances of pain ‘flare-ups'” after the opioid contract was breached; Dr. Bang's cancellation of the opioid contract “without ever seeing Plaintiff in person” constituted malpractice; and his libel claims are supported by “a number of items” in his “VA medical records” that are “completely false . . . causing irreparable harm to plaintiff's character in the eyes of any potential future physician.” (Pl.'s Opp'n to Mot. to Dismiss Second Am. Compl. ECF No. 32 (“Opp'n”) at 1-2.)
I. Breach of Contract Claim
In support of his breach of contract claim, Franson alleges “Dr. Glasser and Plaintiff entered into an opioid contract with an unwritten understanding that cannabis consumption would NOT violate the contract, ” and “[t]his contract was violated without cause by Daniel Bang on Monday, March 23, 3015, WITHOUT consulting Plaintiff and despite Plaintiff's protests.” (Am. Compl. ¶¶ 4, 36.) Defendants move to dismiss this claim based on Franson's failure to allege the existence of a contract between Franson and Defendants and the Court of Federal Claims exclusive jurisdiction over contract claims against the United States.
To establish a claim for breach of contract under Oregon law, a plaintiff must show: (1) the existence of a contract; (2) its relevant terms; (3) the plaintiff's full performance and lack of breach; and (4) the defendant's breach resulting in damage to the plaintiff. Schmelzer v. Wells Fargo Home Mortg., No. CV-10-1445-HZ, 2011 WL 5873058, at *4 (D. Or. Nov. 21, 2011) (citing Slover v. Or. State Bd. of Clinical Soc. Workers, 144 Or.App. 565, 570-71 (1996)). Furthermore, the plaintiff must allege the defendant was a party to the contract or is otherwise bound by the terms of the contract. See E.E.O.C. v. Waffle House, 534 U.S. 279, 294 (2002) (“It goes without saying that a contact cannot bind a nonparty.”); Slover, 144 Or.App. at 572 (court properly dismissed claims against individual defendants where plaintiff alleged contract was only with state agency).
This court previously dismissed Franson's breach of contract claim against the Department and Dr. Bang noting: “None of the allegations set forth in the Complaint [] indicated a contract existed between Franson and Defendants.” Franson, 2020 WL 428154, at *4. The Amended Complaint does not incorporate new allegations relating to the existence of a contract between the Department, Dr. Bang, or the United States. Furthermore, Franson does not describe the relevant terms of the contract, other than describing it as an “opioid contract” and an oral understanding cannabis use would not violate the contract. Franson fails to state a viable claim for breach of contract against Defendants and this claim should be dismissed.
Even assuming Dr. Glasser had the ability to commit the United States, its agencies, and employees, to a contract, this court lacks subject matter jurisdiction over the claim. The Tucker Act creates jurisdiction in the Court of Federal Claims for claims against the United States founded upon an express or implied contract while the Little Tucker Act establishes concurrent jurisdiction in the federal district courts for such claims seeking not more than $10,000. 28 U.S.C. § 1491(a)(1) (2019), 28 U.S.C. § 1346(a)(2) (2019). When “read together, these statutes provide for jurisdiction solely in the Court of Federal Claims for Tucker Act claims seeking more than $10,000 in damages and concurrent district court jurisdiction over claims seeking $10,000 or less.” McGuire v. United States, 550 F.3d 903, 911-912 (9th Cir. 2008). Franson seeks damages in the amount of $365,000 plus punitive damages for breach of contract. The Court of Federal Claims has exclusive jurisdiction over Franson's breach of contract claim.
II. Tort Claims
A. Proper Defendant under FTCA
In the F&R, this court dismissed Franson's medical malpractice and libel claims against the Department and Dr. Bang explaining “the FTCA “is the exclusive remedy for tortious conduct by the United States and it only allows claims against the United States'” and “Franson failed to name the United States as the defendant, and instead names the [Department] and Dr. Bang.” Franson, 2020 WL 428154, at *3 (quoting Fed. Deposit Ins. Corp. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998)). Defendants assert the court should again dismiss the Department and Dr. Bang.
While Franson describes his claims against the Department and Dr. Bang in the body of the Amended Complaint under the subsection titled “PARTIES, ” he identifies only the United States in the caption of the Amended Complaint, expressly alleges the United States is the “only responsible party for the U.S. Department of Veterans Affairs, and describes the United States as “the defendant” in the subsection title “JURISDICTION AND VENUE.” (Am. Compl. ¶¶ 19, 20, 22, 23.) Additionally, Franson represents in his opposition brief he included allegations related to the Department and Dr. Bang solely to avoid “giant holes” and to allow them to testify in federal court and “answer for their action(s) and/or inaction.” (Opp'n at 2.) Based on Franson's allegations and representations, this court finds Franson intended to substitute the United States for the Department and Dr. Bang, did not intend to include them as defendants in this action, and does not state any claim against them in the Amended Complaint. Accordingly, the court should deny Defendants' motion to dismiss Franson's tort claims against the Department and Dr. Bang as moot.
B. Medical Malpractice
Franson alleges Dr. Bang's changes to Franson's “prescription regimen” without an “in-person evaluation” is the “core” of his medical malpractice claim and he “continues to be injured every day [he] does not have a small amount of prescribed opioids, for the pain is debilitating in so many ways.” (Am. Compl. ¶¶ 9, 37.) Defendants move to dismiss this claim under Rule 12(b)(6), based on the lack of a causal connection between Dr. Bang's alleged misconduct and Franson's alleged injury.
Franson's tort claims under the FTCA are determined in accordance with Oregon law. 28 U.S.C. § 1346(b)(1) (2019) (the United States is liable for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”) In Oregon, a plaintiff must plead and prove the following elements in support of a medical malpractice claim: (1) a duty that runs from the medical practitioner to the plaintiff; (2) breach of the duty by the medical practitioner; (3) the plaintiff suffered harm measurable in damages; and (4) a causal link between the breach and the harm. Bell v. United States, No. 3:15-cv-02176-SB, 2017 WL 4248184, at *2 (D. Or. Aug. 29, 2018) (citing Moser v. Mark, 223 Or.App. 52, 55-56 (2008)). “In most medical malpractice cases, expert testimony is required to establish the standard of care in the community.” Id. (citing Trees v. Ordonez, 354 Or. 197 207 (2013)).
Franson alleges Dr. Bang violated “the canons of medical ethics as a physician” when he made changes to Franson's prescription medication without physically examining, or even meeting, with him. (Am. Compl. ¶ 9.) Defendants argue the Amended Complaint lacks “an allegation that had Defendants performed an in-person evaluation Franson would have continued to receive opioids, or that a physician following the requisite standard of care would not have discontinued or otherwise altered Franson's protracted opioid regimen despite his concomitant cannabis use.” (Defs.' Mot. to Dismiss Second Am. COmpl., ECF No. 29 (“Mot.”), at 10.)
The court acknowledges Defendants' argument has merit and a more artfully pleaded medical malpractice claim would have included such allegations. However, Franson is appearing pro se and the court must construe the allegations of the Amended Complaint liberally under less stringent standards than those applicable to lawyers. Franson alleges Dr. Glasser, his treating physician for nearly four years, prescribed opioids to manage Franson's extraordinary pain with the knowledge that Franson intended to, and in fact did, continue to use cannabis, and that opioid and cannabis use provided substantial pain relief. (Am. Compl. ¶¶ 2, 3, 5, 7, 34.) Viewed liberally in a light most favorable to Franson, these allegations establish that at least one physician with personal knowledge of Franson's condition gained through in-person examinations would have continued Franson's opioid prescription despite his concurrent cannabis use and, while admittedly not the strongest inference, that Dr. Bang might not have discontinued the opioid prescription if he conducted an in-person examination and fully understood Franson's condition and cannabis use. Franson clearly alleges that as a result of Dr. Bang's alteration of his prescription regimen, he suffered extreme physical, mental, and emotional pain. (Am. Compl. ¶ 37.)
Affording Franson the deference to which he is entitled as a pro se litigation, the court cannot say Franson failed to meet the less stringent pleading standards applicable to him with respect to his medical malpractice claim based on Dr. Bang's discontinuation of his opioid prescription before meeting with Franson and the resulting increase in his physical, mental, and emotional pain. Moreover, the court is mindful that “[u]nless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Obeng-Amponsah v. Don Nfiguel Apartments, 744 Fed.Appx. 476, 477 (9th Cir. 2018). Franson could cure the alleged deficiencies merely by including the missing allegations identified by Defendants in a third amended complaint. Consequently, the court recommends Franson's medical malpractice claim be found sufficient as pleaded, or that Franson again be allowed to amend the Amended Complaint to include the specifically allegations offered by Defendants, which would cure the deficiencies noted by Defendants.
C. Libel
In support of his claim for libel, Franson alleges “‘subsequent' physicians” included “false statements and factual errors” in Franson's “medical records to justify the revocation of the previously existing opioid agreement.” (Am. Compl. ¶¶ 12, 13.) Franson seeks damages for pain and suffering, punitive damages, and redaction of his medical records. (Am. Compl. ¶¶ 47, 48.) Defendants seek dismissal of Franson's libel claim based on his failure to identify “specific statements that are allegedly false, let alone defamatory, their publication, or any resulting cognizable harm.” (Mot. at 13.)
To allege a libel or defamation claim under Oregon law, a plaintiff must allege: (1) the making of a defamatory statement; (2) the publication of the defamatory material; and (3) a resulting special harm, unless the statement gives rise to a presumptive special harm. Redwind v. Western Union, LLC, No. 3:14-cv-01699-AC, 2016 WL 3606595, at *6 (D. Or. May 2, 2016), adopted 2016 WL 3410183 (D. Or. June 16, 2016), aff'd 698 Fed.Appx. 346 (9th Cir. 2017). Typically, “[a] defamatory communication is one that would subject another to hatred, contempt or ridicule . . . [or] tend to diminish the esteem, respect, goodwill or confidence in which [the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the other].” Reeseman v. Highfill, 327 Or. 597, 603 (1998) (quoting King v. Menolascino, 276 Or. 501, 504 (1976) (internal quotation marks and citations omitted)). “[W]hen pleading a defamation claim, courts generally require the plaintiff to specifically identify the defamatory statements at issue and to plead those statements verbatim.” Redwind, 2016 WL 3606595, at *6 (citing Volvo N. Am. Corp v. Men's In''l Pro. Tennis Council, 678 F.Supp. 1035, 1046 (S. D. N.Y. 1987) (cited favorably by Rice v. Comtek Mfg. Of Ore, Inc., 766 F.Supp. 1539, 1541 (D. Or. 1990)).
Franson does not specifically identify the statements he alleges are false and defamatory. Rather, he merely describes them as false statements included in his medical records “to justify the removal of opioids being prescribed.” (Am. Compl. ¶¶ 12, 13.) Accordingly, Franson has failed to state a viable claim for defamation. Furthermore, other allegations in the Amended Complaint make clear the alleged defamatory statements on which Franson relies are medical opinion or conclusions based on admitted facts which are not actionable or are likely privileged.
In the two sections of the Amended Complaint addressing remedies, Franson seeks “the right to exercise the ‘line-item veto” in [his] medical records” to remove or redact “all libel, erroneous notes, mistaken assumptions, and wrong conclusions” and “biased, one-sided, and contaminated medical opinions with regard to opiates” cited in his medical records as a remedy for Defendants' alleged defamation. (Am. Compl. ¶¶ 14, 48.) These allegations make clear the alleged defamatory statements relied on by Franson are various physicians' opinions on the propriety of prescribing opiates to Franson despite his admitted continuing cannabis use. A defamation claim must be premised on a statement that is actually false. “Even if a statement is capable of a defamatory meaning, there can be no viable action for defamation if the statement is substantially true.” Rycraft, Inc. v. Ribble Corp., No. CIV. 97-1573-KI, 1999 WL 375610, at *7 (D. Or. Apr. 26, 1999) (citing Bahr v. Ettinger, 88 Or.App. 419, 422 (1998)). Thus, to the extent Defendants expressed their opinions about the propriety of prescribing opioids to a cannabis user, provided information to support these opinions, and apply these opinions to Franson, Defendants' statements are not actionable as defamatory.
Moreover, the alleged defamatory statements appear to be privileged. Franson repetitively alleges Defendants made the defamatory statements to “justify the revocation of the previously existing opioid agreement” and “justify the removal of opioids being prescribed.” (Am. Comp. ¶¶ 12, 13.) A defamatory statement is subject to a qualified privilege if: “(1) it was made to protect the defendant's interests; (2) it was made to protect the interests of the plaintiff's employer; or (3) it was on a subject of mutual concern to the defendant and the persons to whom the statement was made.” Mannex Corp. v. Bruns, 250 Or.App. 50, 59 (2012) (citing Wallulis v. Dymowski, 323 Or. 337, 350 (1996)). Based on the allegations, Defendants included the alleged defamatory statements in Franson's medical records to protect their interests by explaining and providing support for their decision to discontinue Franson's opioid prescription. Additionally, in his opposition brief, Franson explains the alleged defamatory statements “cause irreparable harm to plaintiff's character in the eyes of any potential future physician.” (Opp'n at 2.) The medical history of a mutual patient is a “subject of mutual concern” to previous and prospective physicians. Accordingly, the statements found in Franson's medical records are undoubtedly privileged.
A declarant may lose the qualified privilege if he or she has an improper purpose for publishing the defamatory statements:
A qualified privilege may be lost if: (1) the publisher does not believe that the statement is true or lacks reasonable grounds to believe that the statement is true; (2) if the statement is published for a purpose other than that for which the particular privilege was given; (3) if the statement is published to someone not reasonably believed to be necessary to accomplish the purpose; or (4) if the publication involves defamatory information not reasonably believed to be necessary to accomplish the purpose.Wilson v. Dollar Tree Stores, Inc., No. Civ. 03-817-HA, 2004 WL 1381209, at *3 (D. Or. June 21, 2004) (citing Shafroth v. Baker, 276 Or. 39, 45 (1976). Franson fails to allege facts establishing, or even implying, Defendants abused the qualified privilege or that any of the four factors apply.
Conclusion
Defendants' motion (ECF No. 29) to dismiss to dismiss for lack of subject matter jurisdiction should be DENIED as moot with respect Franson's tort claims against the Department and Dr. Bang, and GRANTED with respect to Franson's breach of contract claim against the United States. Additionally, Defendants' motion to dismiss for failure to state a claim should be DENIED with respect to Franson's medical malpractice claim and GRANTED with respect to Franson's breach of contract and libel claims.
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within seventeen (17) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.