Butler v. Oregon Health & Science University et al
OPINION & ORDER: Defendants' Motion for Summary Judgment 21 is GRANTED and this case is DISMISSED. Signed on 10/24/2017 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OREGON HEALTH & SCIENCE
UNIVERSITY, et al.,
2246 Laurel St.
Forest Grove, OR 97116
Pro se Plaintiff
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OPINION & ORDER
Nikola Lyn Jones
Katie M. Eichner
Lindsay Hart, LLP
1300 SW Fifth Ave., Suite 3400
Portland, OR 97201
Attorneys for Defendants
HERNÁNDEZ, District Judge:
Pro se Plaintiff Janell Butler brings this action alleging medical malpractice claims
against Oregon Health & Science University (“OHSU”) and Dr. Kathryn Schabel. Before the
Court is Defendants’ Motion for Summary Judgment. See Mot. Summ. J, ECF 24. Defendants
moves for judgment as a matter of law on Plaintiff’s claims on the grounds that she failed to
provide the statutorily required notice to Defendants, did not file her case within the two-year
statute of limitations period, and because the regulation which Plaintiff invoked as the basis for
subject matter jurisdiction does not provide her with a private cause of action. Plaintiff has not
responded to Defendants’ motion and has failed to raise any genuine issue of material fact.
Therefore, the Court grants summary judgment in Defendants’ favor and dismisses this case.
On July 28, 2014, Dr. Schabel performed total knee replacement surgery on Plaintiff.
Schabel Decl. ¶ 3, ECF 23. On October 8, 2014, Plaintiff received an x-ray evaluation in
response to her hip pain. Pl.’s Decl. Ex. 2 at 10, ECF. 6. Plaintiff began seeking treatment for
lower back and hip pain in October and December of 2014. Id. On January 22, 2015, Plaintiff
requested that Oregon Health Plan approve treatment for her back and hip pain. Id. That request
was denied on February 2, 2015, based on the medical finding that Plaintiff’s condition was
below the required diagnosis. Id. at 7. Plaintiff appealed, stating: “I just had a total knee
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replacement which now that it’s fixed has thrown my right hip and back all out of place. You
can’t fix one and not the other, it doesn’t help me with knee replacement.” Id. at 18. Plaintiff’s
appeal was also denied.
The Court previously granted Plaintiff’s application to proceed in forma pauperis and
dismissed her Complaint sua sponte after concluding that Plaintiff had not demonstrated a basis
for federal subject matter jurisdiction. See, Op. & Order, Feb. 6, 2017, ECF 7. Plaintiff filed an
Amended Complaint which the Court also dismissed sua sponte for the same reason. See Am.
Compl., ECF 9; Op. & Order, Mar. 3, 2017, ECF 10. Plaintiff then filed her Second Amended
Complaint on March 17, 2017. Second Am. Compl., ECF 12. OHSU received service in this case
on May 1, 2017. St. Clair Decl. ¶ 6, ECF 22. Dr. Schabel never received service. Schable Decl.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)). Once the moving party meets its initial burden of
demonstrating the absence of a genuine issue of material fact, the burden then shifts to the
nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade
Comm’n v. Stefanchik, 559 F.3d 924, 927–28 (9th Cir. 2009) (quoting Horphag Research Ltd. v.
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Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007)). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
Defendants make three arguments in support of their motion. First, they argue that
Plaintiff has failed to provide the necessary tort claim notice under Or. Rev. Stat. (“O.R.S.”)
§ 30.275. Second, Defendants argue that Plaintiff did not file her claim within the two-year
statute of limitations period for medical malpractice cases under O.R.S. § 12.110(4). Finally,
Defendants claim that the regulation which Plaintiff cites, 45 C.F.R. § 690, does not provide a
basis for federal question jurisdiction.
The Oregon Tort Claims Act provides that a plaintiff bringing an action against a public
body or employee of a public body must give notice of the claim. O.R.S. § 30.275(1). Notice of
the medical malpractice claim must be given within 180 days after the plaintiff discovered or
reasonably should have discovered the basis for her claim. O.R.S. § 30.275(2)(b). In this case,
the allegedly negligent surgery occurred on July 28, 2014. Plaintiff began treatment for back and
hip pain stemming from that surgery in October of 2014. Despite Plaintiff’s awareness of her
injury, to date, she has not provided the statutorily required notice to either OHSU or Dr.
Schabel. St. Clair Decl. ¶¶4–5; Schabel Decl. ¶ 4.
Plaintiff has not created a genuine issue of material fact because she has failed to respond
to Defendants’ properly supported summary judgment motion. Therefore, even when viewing
the facts in the light most favorable to Plaintiff, Defendants have demonstrated that they are
entitled to judgment as a matter of law based on Plaintiff’s failure to provide the statutorily
required notice. In addition, the Court finds that Defendants’ motion should be granted given that
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Plaintiff’s claims were not filed within the two-year limitation period. Plaintiff’s surgery
occurred on July 28, 2014, and she was aware of her injury by at least October of 2014. Plaintiff
did not file her lawsuit until January 26, 2017, after the two-year limitation period had expired.
This also provides the Court with a sufficient basis to grant Defendants’ motion.1
Defendants’ Motion for Summary Judgment  is GRANTED and this case is
day of ______________________, 2017.
MARCO A. HERNÁNDEZ
United States District Judge
Because the Court is granting summary judgment on other grounds, it need not reach
Defendants’ argument regarding subject matter jurisdiction.
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