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Concienne v. Asante

Court of Appeals of Oregon

September 18, 2019

Robert CONCIENNE, Plaintiff-Appellant,
v.
ASANTE, dba Rogue Valley Medical Center, and Ruth Rabinovitch, M.D., Defendants, and Tracey Stephen KATHER, N.P., Defendant-Respondent.

          Argued and submitted October 22, 2018.

          Jackson County Circuit Court 123280L3, Ronald D. Grensky, Judge.

          Kevin L. Cathcart argued the cause and fled the briefs for appellant.

          Janet M. Schroer argued the cause for respondent. Also on the brief were Ruth C. Rocker and Hart Wagner LLP.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Judgment vacated and remanded with instructions to dismiss the complaint for lack of standing.

         Case Summary: In this medical malpractice case, plaintiff alleged that defendant, a nurse practitioner, misdiagnosed plaintiff, resulting in his subsequent hospitalization and surgery. After the facts underlying the medical malpractice action occurred, but before the suit was brought, plaintiff concluded a Chapter 7 bankruptcy case in which plaintiff's debts were discharged. During the bankruptcy case, plaintiff was required to disclose all assets, including civil claims against third parties. Plaintiff did not disclose his potential medical malpractice cause of action to the bankruptcy court. Based on plaintiff's failure to disclose the claim as an asset, defendant moved for summary judgment, citing the doctrine of judicial estoppel. The trial court granted defendant's motion. On appeal, the issue is whether plaintiff's bankruptcy estate is the owner of plaintiff's medical malpractice claim because plaintiff was, or reasonably should have [299 Or.App. 491] been, aware of the potential claim when he failed to list it as an asset in the earlier Chapter 7 bankruptcy proceeding. Held: The trial court erred by failing to dismiss plaintiff's complaint for lack of standing. As a matter of law, plaintiff was, or reasonably should have been, aware of the claim when he failed to disclose it to the bankruptcy court. Therefore, the bankruptcy estate owned and controlled the claim. As a result, the bankruptcy trustee was the real party in interest, and plaintiff lacked standing to bring the claim.

         Judgment vacated and remanded with instructions to dismiss the complaint for lack of standing.

         [299 Or.App. 492] SHORR, J.

         The issue in this case is whether plaintiffs bankruptcy estate is the owner of plaintiffs medical malpractice claim because plaintiff was or reasonably should have been aware of the potential claim when he failed to list it as an asset in an earlier Chapter 7 bankruptcy proceeding. As discussed below, we conclude that, as a matter of law, plaintiff was or reasonably should have been aware of the claim when he failed to list it with the bankruptcy court and, therefore, the bankruptcy estate owns and controls the claim.

         Plaintiff alleges that defendant Kather, a nurse practitioner, failed to diagnose plaintiff with acute respiratory failure secondary to pneumocystis jiroveci pneumonia (PCP), which is an illness caused by AIDS. Plaintiff alleges that that failure resulted in plaintiffs hospitalization and the removal of his colon. Nearly one year after that hospitalization, plaintiff concluded a Chapter 7 bankruptcy case in which the court determined that plaintiff had no assets and, therefore, discharged his debts. Plaintiff did not disclose the potential malpractice claim as an asset during that proceeding. Plaintiff later filed this action. Kather, citing the doctrine of judicial estoppel, moved for summary judgment on the ground that plaintiffs attempt to bring this malpractice case was inconsistent with his position in the bankruptcy case that he had no assets-including any claims against third parties. Kather also raised the alternative argument that plaintiff was not the party in interest-and therefore lacked standing-because plaintiffs claim was an unscheduled asset that belonged to his bankruptcy estate. The trial court concluded that judicial estoppel applied and granted defendant's motion, and plaintiff appeals. For the reasons explained below, we conclude that plaintiff lacked standing to bring the claim. Accordingly, we vacate the judgment in Kather's favor and remand for the trial court to dismiss plaintiffs complaint for lack of standing.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         We begin with a factual background of plaintiffs bankruptcy case and subsequent medical malpractice lawsuit. [299 Or.App. 493] The relevant facts that underlie the issue of standing are undisputed. A. Plaintiff initiated a Chapter 13 bankruptcy case.

         On January 8, 2009, plaintiff filed a petition for bankruptcy in the United States Bankruptcy Court in the District of Oregon. Because he was able to earn income at the time, the bankruptcy court deemed him eligible for Chapter 13 status and established a bankruptcy plan for repayment of his debts.

         B. Plaintiffs Relevant Medical History

         Between January and June 2010, plaintiff was having trouble breathing and sought medical care from Kather, a nurse practitioner. Kather diagnosed plaintiff with reactive airway disease (RAD) and provided plaintiff with an inhaler to help manage his symptoms. On July 8, 2010, plaintiff began to have great difficulty breathing and was admitted to the emergency department at Rogue Valley Medical Center (RVMC), where doctors determined plaintiffs breathing difficulties and other symptoms were PCP- not RAD-resulting from plaintiff being positive with HIV and having AIDS. Prior to that diagnosis, plaintiff was unaware that he was HIV positive, let alone that the disease had progressed to such an advanced stage. After he was admitted to the intensive care ward at RVMC, plaintiff developed a severe infection in his colon, requiring a complete colectomy on July 25, 2010.

         C. Plaintiff converted his Chapter 13 to a Chapter 7 bankruptcy case and received a "no asset" discharge of his debts.

         Approximately six months after plaintiffs AIDS diagnosis, hospitalization, and colectomy, plaintiff was no longer able to make the payments required by his Chapter 13 bankruptcy and converted his bankruptcy case to Chapter 7 on January 26, 2011. In converting from a Chapter 13 to a Chapter 7, plaintiff was required to file a list of creditors holding unsecured claims as of the date of conversion, including creditors associated with plaintiffs medical care [299 Or.App. 494] that he received in relation to his AIDS diagnosis, hospital-ization, and surgery. Plaintiff had accrued nearly $80,000 in debt at that point, over $70,000 of which was attributable to AIDS-related medical services largely arising out of his prior hospitalization.

         As part of the Chapter 7 conversion, plaintiff was also required to submit to the bankruptcy court a list, or "schedule," of assets as required by the Bankruptcy Code, 11 U.S.C. § 521, that plaintiff possessed as of that date. Plaintiffs schedule of assets required him to disclose, among other things, "other contingent and unliquidated claims of every nature," and an estimated value of each. Plaintiff marked in his schedule that he had "none."

         On May 12, 2011, the bankruptcy court discharged plaintiffs debt accrued as a result of his medical services related to his AIDS diagnosis.[1] The court's order of discharge identified plaintiffs petition as a "no asset" case, as the court was under the impression that plaintiff possessed no property that could be disposed of for the benefit of his creditors.

         D. Plaintiff filed his medical malpractice case against Kather.

         On December 21, 2012, nearly 18 months after the close of plaintiffs bankruptcy case, plaintiff filed his first amended complaint against Kather, alleging professional negligence and seeking $3,000,000 in economic and noneco-nomic damages. Specifically, plaintiffs complaint alleged that ...


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