For those following the Providence Health System medical record data theft case, this is a summary of oral argument at the Oregon Court of Appeals last Friday. The three-judge panel, Judges Haselton, Armstrong, and Rosenblum were completely engaged and extremely well prepared.

There are several major legal issues. The first is whether Oregon law recognizes that patients may recover for emotional distress when a medical provider wrongfully fails to protect confidential patient information. Oregon has been pretty conservative in its approach to emotional distress damages.  The Court of Appeals earlier cases have generally required either physical injury or a very short list of exceptions.

While I would love to see a change in the Court’s framework, it’s not necessary to resolve this case. The law recognizes what are called “special relationships,” and that includes the relationship between patients and their medical providers. So the gist of the argument was that in a special relationship case like this one, patients can recover non-economic damages when medical providers wrongfully fail to keep patient records confidential.

Sounds kind of like a no-brainer, I suppose, but the Court was definitely grappling with how the lines are to be drawn.  These gray areas are perhaps more complicated for the Court because they have to decide this case but also think ahead to the implications of the ruling.

The other big legal issue arose under the Unlawful Trade Practices Act claim. The Court seemed to have no trouble understanding that patients who spent money to protect themselves suffered a recognizable loss for purposes of the Unlawful Trade Practices Act.

I have to say that the patients’ legal team felt like oral argument went well. But it’s important to not read too much into that. I’ve won cases where I felt good about oral argument and lost them, too.  So it’s not necessarily the best predictor. My best guess is that we’ll hear from the Court with a decision before the end of the year.

When that day comes, it will not be the end. Instead, it will simply be another day in this long fight.

David Sugerman

For those following Gibson v. Providence, State of Oregon Court of Appeals, Case No. CA A137930, we’re scheduled to argue in front of the Court of Appeals next Thursday, April 2. The question is whether the trial court erroneously dismissed the proposed class action.

It’s been a long haul, and there is far to go. No one said this would be easy, but then that’s usually how it works. I’ll post an update on oral argument. Meantime, if you want to review a copy of the first brief that we filed for the patients, you can find it archived here. But you should only do so if you’re into the whole law geek thing.

David Sugerman

Catching up–because we are way behind–here’s the first of two overdue document updates. This link appellants-reply-brief-and-reply-excerpt-of-recort pulls up a copy of the patients’ reply brief in the Oregon Court of Appeals in the proposed class action against Providence for loss of medical records.

Here’s a link to the entry that will pull up the patients’ opening brief, as well.

David Sugerman

Unless you enjoy reading court cases, no sense in looking at this new Oregon Court of Appeals opinion. It’s an interesting case, even if it’s a bit long. In it, the Court took two lawyers to task over their conduct.

In the underlying case, Tahvili v. Washington Mutual, the Court affirmed a trial court’s ruling barring a California lawyer–one Burton McCullough–for his conduct at trial. Mr. McCullough was specially admitted to practice in Oregon for a trial. According to the Court of Appeals opinion, Mr. McCullough vioalted a trial court order, repeatedly violated trial court rulings and kept trying to get inadmissible evidence before the jury. In the middle of the trial, the trial judge got so angry with Mr. McCullough’s repeated violations that he revoked Mr. McCullough’s permission to specially appear.

The trial judge, Sid Galton, has since retired. Mr. McCullough’s conduct reads like a point-by-point primer on how not to try cases. Or at least how not to try cases in Oregon.

The Court of Appeals took a dim view of Mr. McCullough’s conduct. But it seemed more annoyed by the brief submitted in the Court of Appeals. In their brief, Mr. McCullough and the Portland firm of Greene & Markley argued that the trial judge–Judge Galton–suffered from mental health problems and had anger issues. The appeal brief even denied that Judge Galton had entered an order and kept referring to a “phantom order.” While the Court of Appeals spared details of more wreckage but made clear that the arugment  went further with hyperbole and distortion.

Writing for the unanimous court, Judge Haselton had this to say:

“We pause to express our collective disapproval of such methods of appellate “advocacy.”  We have repeatedly, in both published opinions and public professional fora, condemned ad hominem attacks on trial judges as offensive and improper.  Such “scorched-earth” tactics, when coupled–as they almost invariably are–with lurid and misleadingly incomplete descriptions of the record–are counterproductive.  They impair, rather than assist, the appellate process” (quotations and italics in the original).

In the rarified air of the Oregon Court of Appeals, that’s equivalent to a serious smack down.  Courts are like elephants in that they don’t forget.  Oregon remains a small legal community, and as a result, most of us who practice law here are mindful of how we conduct ourselves. In Oregon legal circles, earning a reputation for being unprofessional or dishonest sticks with a lawyer for a long time.

The other thing of note is that the Court of Appeals correctly protected the integrity of the trial judge. One of the things that’s really important for our system is judicial integrity. We can’t have a fair legal system if judges aren’t accorded respect by lawyers appearing in court. We can disagree with judges. We can dislike their reasoning and take issue with their conclusions, but if we’re to be part of the justice system, each of us owes a duty to maintain the integrity of the system.

David Sugerman