and Submitted May 9, 2016
County Circuit Court 125001L2; Benjamin M. Bloom, Judge.
T. Carey, Jr., argued the cause and fled the briefs for
Bradley F. Piscadlo argued the cause for respondents
Anesthesia Associates of Medford, P. C., Steven G. Cannon,
Lindy S. Deatherage, Brian E. Hall, and Thomas J. Hammond.
With him on the brief were Martha J. Hodgkinson and
Hodgkinson Street Mepham, LLC.
C. Blatt argued the cause for respondents Providence Health
& Services-Oregon and Thomas S. Hanenburg. With her on
the brief were Jeffrey J. Druckman and Druckman & Blatt,
appearance for respondents James D. Faraoni, Daniel A. Kahn,
and Robert J. Trujillo.
Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr,
Or.App. 645] Case Summary:
appeals a general judgment dismissing all of his claims
against defendants. In several assignments of error,
plaintiff argues that the trial court erred in granting
summary judgment because he raised genuine issues of material
fact with respect to each element of his claims, which were
for breach of contract, wrongful discharge, intentional
misrepresentation, violations of ORS 659.815, intentional
interference with economic relations, and intentional
interference with prospective advantage. Held: The
trial court did not err in granting summary judgment to
defendants on all of plaintiff's claims because plaintiff
failed to produce evidence raising a genuine issue of
material fact on at least one challenged element of each of
Or.App. 646] EGAN, C.J.
appeals a general judgment dismissing all of his claims
against defendants Providence Health & Services-Oregon
(Providence), Thomas Hanenburg, Anesthesia Associates of
Medford, PC. (AAM), and AAM anesthesiologists Steven Cannon,
Lindy Deatherage, Brian Hall, and Thomas Hammond (defendant
anesthesiologists). On appeal, plaintiff raises 13
assignments of error. We reject plaintiffs assignments of
error 1, 2, 11, 12, and 13 without discussion. In assignments
of error 3 through 10, plaintiff argues that the trial court
erred in granting summary judgment to defendants on
plaintiffs claims for breach of contract, wrongful discharge,
intentional misrepresentation, violations of ORS 659.815,
intentional interference with economic relations, and
intentional interference with prospective advantage. With
respect to those assignments, we conclude that the trial
court did not err in granting summary judgment to defendants
on all of plaintiffs claims, and we affirm.
reviewing a motion for summary judgment, we state the facts
in the light most favorable to the nonmoving party, here
plaintiff, and draw all reasonable inferences in plaintiffs
favor. ORCP 47 C; Harper v. Mt. Hood Community
College, 283 Or.App. 207, 208, 388 P.3d 1170 (2016).
"[W]here the record could reasonably support either
party's version of events, we state the facts as
described by plaintiff." Huber v. Dept. of
Education, 235 Or.App. 230, 232, 230 P.3d 937 (2010).
claims pertain to his business relationship with Providence
Medical Group-South (PMG), Providence Medford Medical Center
(the Providence hospital), and AAM. PMG and the Providence
hospital both operate in the Medford area and are owned and
operated by Providence. Through PMG, Providence employs
physicians who are granted privileges to work at the
Providence hospital. AAM [289 Or.App. 647] is a medical group
operating in the Medford area, which provides anesthesiology
services to the Providence hospital.
2009, Providence advertised a cardiovascular surgery position
in Medford. Plaintiff, a board-certified cardiothoracic
surgeon then employed at Case Western Reserve University,
applied for the position and, in February and March 2010,
Providence invited plaintiff to visit the Providence hospital
for interviews. During those interviews, plaintiff met
defendant Hanenburg, the chief executive officer of the
Providence hospital; Jackson, the chief executive officer of
PMG; several other PMG and Providence hospital personnel; and
defendants Hall and Cannon, two of AAM's
anesthesiologists. Pertinent to plaintiff's claims are
representations that Providence personnel made to plaintiff
regarding the cardiovascular surgery position. Those
representations include the following:
• The Providence hospital "had had a
[cardiovascular surgery] program that had been sort of up and
down over the last four years. They had a [cardiac] surgeon
that had been there, *** consistently for a year and a half,
two years * * * and that since he had left, [the hospital]
had incorporated surgeons [who] would" fill in
• There was an established cardiovascular surgery
program at the other hospital in Medford, Rogue Valley
Medical Center (Rogue Valley). For a number of years,
Providence physicians had been referring patients to Rogue
Valley for surgeries and were "comfortable" doing
so. The AAM anesthesiologists also provided anesthesiology
for Rogue Valley's cardiovascular surgeries, but Hall and
Cannon "seemed really supportive" of the Providence
hospital's program and were planning to provide a core
group of six anesthesiologists.
[289 Or.App. 648] • "Providence wanted to have a
competitive program to compete against Rogue Valley Medical
Center; to offer all the services for cardiac and general
• Providence was hopeful that, if the Providence
hospital was able to get another on-call interventionist
cardiologist and a cardiothoracic surgeon, the hospital would
be able to participate as a receiving facility in the
community-wide emergency medical services (EMS)
STEMI network, which was a system within the
county to rapidly transport STEMI patients to the nearest
facility for treatment.
• It was very important to Providence that the
cardiovascular surgery program have a sustained record of
good outcomes on patient mortality rates.
• Plaintiff's expressed vision of the cardiovascular
surgery program consisted of, among other things, the
Providence hospital providing "24/7 services for both
cardiac surgery and cardiology, " a dedicated operating
room used solely for cardiothoracic surgeries, and a
supportive anesthesia group. From Hanenburg's
representations, plaintiff understood that the Providence
hospital would provide those conditions.
behalf of Providence, Hanenburg offered, and plaintiff
accepted, the cardiovascular surgery position. PMG's
chief executive, Jackson, and plaintiff signed a
"Physician Employment Agreement" in March 2010,
which provided that plaintiff would receive an annual salary
of $416, 000, be eligible for additional compensation based
on worked "RVUs, " and receive potential bonuses
for achieving certain "quality metrics, "
including, among other things, an "observed to expected
risk-adjusted ratio of 0.97 or less for" specified
surgical procedures, and the hospital becoming a participant
as a primary "PCI" center in the EMS STEMI network.
Or.App. 649] Under the agreement, plaintiff was required to
maintain privileges at Providence, abide by Providence's
policies and regulations, meet patient care responsibilities,
such as charting and phone calls, and meet "productivity
and performance standards as established by Providence."
The failure to satisfy those requirements could result in
"a corrective action plan" or "non-renewal or
termination of Physician's Employment Agreement."
The employment agreement also included a noncompete
provision, under which plaintiff agreed, among other things,
that he would not practice cardiac or cardiovascular surgery
in Jackson or Josephine counties for a period of 18 months
after a termination of employment occurring within the first
three-year employment period.
the agreement, PMG promised to "provide the facilities,
equipment, supplies, inventory, utilities [, ] and other
services necessary or appropriate to support
[plaintiff's] practice of medicine" and to
compensate plaintiff according to the terms of the agreement.
The contract also provided in section 8.2 that, "[i]n
the performance of Physician's medical duties under this
Agreement, Physician will exercise his or her independent
professional judgment in a manner consistent with currently
approved methods and practices of the profession and in the
best interests of the patient."
plaintiff began his employment in June 2010 he learned that
the hospital would not be supplying him with the conditions
that he considered necessary for a competitive, comprehensive
cardiovascular program. There would be no operating room
dedicated solely to cardiac surgeries; instead, plaintiff
would be performing surgeries in a room in which other
surgeries were also performed. Plaintiff also learned that,
under AAM's contract with the Providence hospital, the
only scheduled times for cardiothoracic anesthesiology
services were Tuesdays and Thursdays, from 7:30 a.m. to 12:00
p.m. The anesthesiologists were, however, available on call
for 24 hours each day for urgent or emergent cardiac
surgeries. In February 2011, the anesthesiologists'
scheduled time increased to three days a week, from 7:30 a.m.
to 4:00 p.m.
Or.App. 650] Plaintiff's problems with the
anesthesiologists were not limited to the lack of surgery
hours. Plaintiff complained to Hanenburg that the
anesthesiologists were unsupportive of him. The
anesthesiologists argued with plaintiff, and plaintiff
interpreted their behavior as wanting to "control,
really, my work for their convenience." Plaintiff also
complained about the anesthesiologists' practices,
including that some of them would not wear masks during a
surgery, used bare hands to put in a line, and at least one
of the anesthesiologists would make cell phone calls while in
the operating room. Plaintiff began expressing his
displeasure with these circumstances to Hanenburg early on in
was not the first surgeon at the Providence hospital to
complain to Hanenburg about the anesthesiologists. The
Providence hospital's previous cardiovascular surgeon had
also complained to Hanenburg that the anesthesiologists were
unsupportive of the new cardiovascular surgery program. Other
hospital staff at that time also told Hanenburg that the
anesthesiologists were not supportive of the program, and a
2007 email from Cannon to the other AAM anesthesiologists
confirmed that sentiment, including his wish that "this
whole program would simply go away."
the difficult conditions under which plaintiff felt he was
working, he performed surgeries not only during the scheduled
block times, but also on evenings and weekends. Within the 10
months that plaintiff was employed by Providence, plaintiff
performed 161 surgeries, which was higher than the 125 to 150
annual surgeries that plaintiff believes a cardiovascular
surgery program needs to thrive. Although plaintiff testified
that there were sometimes delays to his surgeries, he also
testified that he never had to decline a surgery because of
the lack of the availability of the operating room or an
anesthesiologist and that the delays did not affect the
outcome of his surgeries.
in September 2010, Hanenburg became concerned about the
mortality rates among plaintiff's patients. Hanenburg and
plaintiff had a conference call with a few other staff,
during which plaintiff agreed to a set of guidelines for
surgery scheduling and preoperative consultations with Dr.
Swanson at Providence St. Vincent Heart and [289 Or.App. 651]
Vascular Institute in Portland (Providence St. Vincent) on
all open heart and cardiovascular cases. Plaintiff believed
that the guidelines were a way of relationship building with
the anesthesiologists to accommodate their concerns and
requests because they "were working fairly hard on the
cardiac surgery service, weekends, evenings."
agreed-to guidelines were formalized into a policy statement,
dated September 29, 2010, entitled "CV Surgery Program
Development, " with which plaintiff also agreed and
signed (the September guidelines). The September guidelines
required, among other things, the following during the first
year of the cardiovascular surgery program: (1) no more than
one elective open heart surgery would be scheduled per day;
(2) no weekend surgical cases would be scheduled unless the
case was an emergent surgical case as defined in the
guidelines; (3) plaintiff was to consult with a
cardiothoracic surgeon at Providence St. Vincent before
performing any elective surgery; (4) plaintiff could not
perform an elective surgery without the consensus of the
Providence St. Vincent cardiothoracic surgeon, the Providence
hospital's cardiothoracic surgeon, and the director of
the Providence hospital's heart and vascular program; and
(5) in any conflict regarding case selection, support staff
availability, or case scheduling, the Providence
hospital's administrator on call, in consultation with
the appropriate heart and vascular staff, would make the
final decision. Plaintiff testified that the September
guidelines never prevented him from doing a surgery that he
wanted to do.
long after the September guidelines took effect, defendant
anesthesiologists asked Grant, president of AAM and a member
of the Providence hospital's medical executive committee
(MEC), to meet them at the Providence hospital on a Sunday to
review records of seven cardiac surgeries performed by
plaintiff and for which AAM had provided anesthesiology
services. Defendant anesthesiologists considered those seven
surgeries to have had "bad outcomes." At that
meeting, defendant anesthesiologists presented the seven
cases to Grant and gave him notes on each of the seven cases.
Those notes focused on plaintiff's actions and patient
care and highlighted defendant anesthesiologists'
concerns [289 Or.App. 652] about plaintiff with respect to
each surgery. Those concerns included questioning whether
plaintiff was authorized to perform a procedure and whether
certain procedures had been appropriate for the new program,
and accusations that plaintiff was dismissing or ignoring
anesthesiologists' findings during procedures and was
falsifying findings in operative reports.
the meeting, Grant called Hanenburg and asked for a Monday
morning meeting because he had serious concerns regarding
plaintiff that he had already shared with Kuhl, who was the
president of Medical Staff and chair of the MEC. At that
meeting, Grant gave Hanenburg the defendant
anesthesiologists' notes, reviewed them with him, and
told Hanenburg that the AAM anesthesiologists had significant
concerns about plaintiff's care that is "putting the
community and our patients at risk." Grant also told
Hanenburg that, given the concerns about falsifying
information, AAM was evaluating whether it needed to report
those concerns to the Oregon Medical Board.
that meeting, Hanenburg consulted Sternenberg, the chair of
surgery, and Kuhl. They decided that a focused peer review of
the seven cases was warranted. Swanson, the surgeon with whom
plaintiff was required to consult at Providence St. Vincent,
and Kelly, an anesthesiologist at Providence St. Vincent,
conducted that review. Swanson and Kelly reported that the
"appropriateness of care" in three of the seven
cases was unacceptable. Upon receiving that review, the MEC
formed a subcommittee to further review the seven cases.
Plaintiff agreed to voluntarily refrain from performing
surgeries for seven days pending the outcome of the MEC
review. At the end ...