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Patient’s defamation suit over doctors’ notes could have ripple effects

Health care programmer’s suit against Oregon Health & Science University could add to scrutiny of medical records
October 19, 2023

Unflattering doctor’s notes made for good comedy in the classic TV sitcom “Seinfeld,” but for one patient in Oregon, Linda Hofer, they were anything but humorous — resulting in a defamation lawsuit against Oregon Health & Science University that has made it all the way to the state’s highest court.

Hofer, who has been diagnosed with two nervous conditions, found herself flagged in OHSU’s records system for allegedly acting in ways that the doctors found suspicious as she sought a prescription for methadone, an opioid.

She sued for defamation, saying two doctors had falsely described her. And last month, after two lower courts found against her, the Oregon Supreme Court ruled that both had erred, meaning her case can go to trial.

The case bears implications that go beyond Hofer’s situation, confirming a recent finding that most public employees in Oregon — including doctors at OHSU and government clinics — no longer enjoy as much protection against defamation lawsuits as high-level executives do.

Potentially, it also shows how a patient-doctor relationship can go wrong.

In her first interview about the case, Hofer, 54, told The Lund Report that she’s no drug-seeker looking for a fix. For her, the case was about preserving access to medication that had changed her life — literally, overnight. 

She’d tried numerous other medications without success to deal with nerve-induced sleepless torment. Then a neurologist in Seattle told her about a study that found positive results from the controlled substance. For her, “It was an absolute miracle,” she said.

Asked for comment on the Supreme Court ruling, an OHSU spokesperson said that the university does not comment on pending litigation. She added, “We remain steadfast in our commitment to our patients and the employees and learners who care for them.” 

Appointment goes wrong

Hofer suffers from medical conditions that include a rare twitching condition as well as Restless-Leg Syndrome, a progressive neurological condition.

When people hear “restless leg,” they dismiss the condition because it sounds like a mere annoyance, Hofer said. But to some who suffer it, it is like “torture,” with compulsive urges causing their legs to jerk and move around at night in ways the person cannot control, causing sleep deprivation and threatening their relationships and employment.

That is what it was like for Hofer, she said.

“It's worse at night, which makes it impossible to sleep,” she said. “I literally had a hole in my sheets from the leg movements, like heavily worn all the way through.”

In 2015 Hofer started looking to leave Seattle, where she was a successful health care programmer working for major clients. She was sick of city life and looking for a lower cost of living, and “fell in love” with a house in Salem.

Her doctor on Seattle warned her she might find it difficult to find a provider, but Hofer didn’t realize how bad it would be.

Methadone is a controlled substance, and doctors are trained to look for misuse by people who are addicted to opioids. Not only that, but doctors prescribing opioids have increasingly come under scrutiny, including civil lawsuits and even criminal charges. Many don’t deal with methadone at all.

A neurologist gave Hofer a prescription for methadone based on her doctor’s recommendation, but urged her to find another provider. But many providers told her they don’t work with patients needing methadone.

At one point, she found a provider who was willing to provide a prescription, but was about to leave the state and wanted a urine test and other follow up, including a signed contract. Having just used the bathroom, Hofer said, she decided the prescription wasn’t worth missing work for a return visit — and a lengthy drive from Salem — with the provider about to leave town.

In 2017 she returned to the original neurologist she’d met with at OHSU. Court records suggest Hofer and her treating doctor had a bad interaction, after which the provider claimed in Hofer’s medical records that there were “numerous red flags” in Hofer’s behavior, breaking “trust.” 

Among other things, the doctor said she’d broken her contract with the previous provider. In her interview with The Lund Report, Hofer said she told the doctor that wasn’t true – she never signed the contract. Faced with what she considered to be a provider denying her needed care, she said she would take the matter not only to OHSU patient assistance, but the Oregon Medical Board.

There was a time when Hofer wouldn't have had access to see what her doctor said about her. But Oregon was a hotbed for the "Open Notes" movement allowing patients access to medical records, and was the first state to see widespread adoption of the practice.

She left the office and returned home, where she received an email notice that her medical records had been updated. She says she was shocked by what she read: “She was making up this whole fictitious summary,” Hofer said.

Later, a second OHSU doctor added to the notes, claiming they, too, had met with Hofer and shared the first doctor’s opinion.

Hofer didn’t know that second doctor existed “until I received a $400 bill,” she told The Lund Report.

OHSU’s medical records essentially meant Hofer wouldn’t get methadone in Oregon, and “ I gave up at that point,” she said.

“I put my house on the market and moved immediately because I needed the medication. I’d started having the movements again severely, and I wasn't able to sleep. I was like, ‘Okay, I'm either gonna lose my job. Or I'm going to go back to Seattle and get the medication so I can keep my job.’”

Suit depicts inaccuracies

She filed suit in Multnomah Circuit Court in 2018, claiming damages that were expected not to exceed $262,000, plus attorney fees.

In court and in depositions, Hofer’s attorney painted a picture of misunderstandings and false entries by OHSU.

In one deposition, for instance, the second doctor to insert negative comments in Hofer’s medical records admitted that she had not actually met with Hofer, contrary to what she had written. The doctor admitted she had merely inserted boilerplate language that was not true.

But the core of OHSU’s defense was not about who was right. Rather, it stemmed from its legal status as a public agency. The university’s lawyers claimed that the sovereign immunity enjoyed by government officials meant their doctors could not be sued for defamation.

Citing past case precedents, both the trial court judge and the appeals judges had agreed. 

But to the Supreme Court justices, David Wallace, Hofer’s attorney, argued that the lower-court rulings against Hofer had misinterpreted the earlier cases. 

“In a time when accurate information is critical and the spread of untruths resonates as a constant battle, the Oregon Supreme Court needs to lead the fight, not shield public officials in broad blanket protection of absolute privilege,” he wrote.

Citing another recent ruling on defamation, the Oregon Supreme Court agreed with Wallace. It sent the case back down to the court of appeals, meaning it will likely go to trial.

Hofer said going to court was a last resort after OHSU rebuffed her efforts to get her records corrected.

“I don’t understand not correcting mistakes when identified,” Hofer said to The Lund Report. “I mean, we all make mistakes, but sometimes it’s how those mistakes are handled that really matters.”


Submitted by Thomas S Duncan on Tue, 10/24/2023 - 13:55 Permalink

The real culprit is the "electronic medical record" that in its present incarnation is merely a conduit for misinformation, boiler-plate nonsense, outright lies and voluminous bloat and garbage.

EMRs take so much time to massage, that there is no time available to actually listen to a patient and accurately record what went on in the interview.

Plus they make everyone pissed off all the time, and so every patient encounter is in danger of starting and ending from positions of mutual distrust.