Opinion
3:19-cv-01983-AR
05-09-2023
JAMES W. FRANSON II, Plaintiff, v. UNITED STATES, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff James W. Franson II, representing himself, brings this Federal Tort Claims Act (FTCA) action against the United States, alleging medical negligence by the Department of Veteran Affair (VA) and VA physician Daniel Hoonyul Bang, M.D. based on Dr. Bang's decision to taper and discontinue Franson's prescription for codeine, an opioid pain relief medication. (Third Amended Complaint (TAC) ¶¶ 9, 37-38.) Franson contends that every day he “does not have a small amount of prescribed opioids” causes him “debilitating” pain and requests damages of $365,000 for his pain and suffering. (Id. ¶¶ 48, 52.)
Franson applied to proceed in forma pauperis, and the court granted his application.
The United States moves for summary judgment under Federal Rule of Civil Procedure 56, arguing that Franson has not presented evidence that Dr. Bang's conduct fell below the standard of care or caused his alleged injuries. (Def.'s Mot. Summ. J. at 11, ECF No. 53.) After that motion was filed, the court sent Franson a summary judgment advice notice, explaining:
When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, as provided in Rule 56(c), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine dispute of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.Franson responded to the summary judgment motion, but he did not submit any declarations, affidavits, or other evidence alongside that response. (Pl.'s Resp. to Mot. Summ. J. at 57.) Instead, he argues that there was “no reason or cause” to change his prescription regimen and reasserts arguments related to libel and breach of contract claims that this court previously dismissed. (Id. at 4, 7, 11-12, 14.)
Although Franson did not submit evidence with his response brief, he previously disclosed his current primary care physician, Dr. Gideonse, as an expert. The United States included Dr. Gideonse's expert report with its summary judgment briefing. (See Decl. of Patrick Conti ¶ 16, Ex. 15, ECF No. 54.)
Because there are no facts from which a jury reasonably could find that Dr. Bang and the VA breached the applicable standard of care and caused Franson's alleged harm, the court recommends granting summary judgment for the United States.
BACKGROUND
A. Procedural History
Franson filed this action on December 6, 2019, asserting claims for libel, breach of contract, and medical malpractice against the United States Department of Veterans Affairs Portland VAMC/CEOC and Dr. Bang. (Compl., ECF No. 2.) Franson's claims stemmed from Dr. Bang's decision to discontinue the use of opioids in the treatment of his chronic pain.
The action was assigned to Magistrate Judge John V. Acosta. (ECF No. 3.) As required by 28 U.S.C. § 1915, Judge Acosta screened Franson's pro se complaint and dismissed it with leave to amend. Franson v. U.S. Dept. of Veterans Affairs, Case No. 3:19-cv-01983-AC, 2020 WL 428154 (D. Or. Jan. 7, 2020.) Judge Acosta explained that, under the FTCA, the court lacked jurisdiction over claims against federal agencies and employees. Id. at *2-3 (citing Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (“A claim against [a federal agency] in its own name is not a claim against the United States.”)). Judge Acosta also concluded that Franson failed to state a plausible claim for breach of contract because the complaint's allegations did not “indicate a contract existed between Franson and defendants.” Id. at *4.District Judge Michael H. Simon adopted Judge Acosta's recommendations and dismissed the complaint with leave to amend. Franson v. U.S. Dept. of Veterans Affairs, Case No. 3:19-cv-01983-AC, 2020 WL 423388 (D. Or. Jan. 27, 2020).
Franson also alleged that VA Regional Office improperly failed to adopt a new “cannabis/opioid” policy in the Pacific Northwest. (Compl. ¶ 6.) The court dismissed that claim for lack of subject matter jurisdiction, explaining that, under the Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687, 102 Stat. 4105 (1988), it lacked authority to review decisions concerning the adoption of a VA “cannabis/opioid” policy.
Franson filed a First Amended Complaint (FAC) on February 27, 2020, reasserting claims for libel, breach of contract, and medical malpractice against the United States based on the same alleged misconduct by the VA and Dr. Bang. (FAC, ECF No. 13.) The government moved to dismiss the FAC, and in response, Franson sought and was granted leave to file a Second Amended Complaint (SAC). (Mot. Dismiss, ECF No. 21; SAC, ECF No. 27.) The motion to dismiss was terminated as moot. (Order, ECF No. 26.)
In the SAC, Franson again asserted claims for libel, breach of contract, and medical malpractice. The United States renewed its motion to dismiss those claims on October 6, 2020. (Mot. Dismiss, ECF No. 29.) After considering the parties' arguments, Judge Acosta recommended dismissal of Franson's breach of contract and libel claims. Franson v. United States, Case No. 3:19-cv-01983-AC, 2021 WL 2232054, at *2-3, 5, 7 (D. Or. May 10, 2021). Judge Acosta explained that the court lacked subject matter jurisdiction over Franson's breach of contract claim against the United States and that, in any event, Franson “failed to allege the material terms of a contract [and] that Defendants were a party to the alleged contract.” Id. at *1. He also concluded that Franson failed to state a cognizable claim for libel because the alleged defamatory statements-medical record notes about the propriety of prescribing opiates to Franson-were not actionable as defamatory. Id. at *6-7. However, Judge Acosta recommended that Franson be allowed to proceed with his medical malpractice claim. Id. at *5, 8. Judge Acosta reasoned that, viewing the allegations liberally, Franson had stated a plausible claim that “Dr. Bang might not have discontinued the opioid prescription if he conducted an in-person examination and fully understood Franson's condition and cannabis use.” Id. at *6.
The United States moved to dismiss the SAC for lack of subject matter jurisdiction as well as failure to state claims for relief. Judge Acosta recommended that the motion to dismiss for lack of subject matter jurisdiction be denied as moot with respect to Franson's claims against the VA and Dr. Bang and granted with respect to Franson's breach of contract claim against the United States. (F&R at 2.)
Franson did not file objections to Judge Acosta's F&R. Instead, he filed another complaint on May 27, 2021-a few days before Judge Simon issued an Order adopting Judge Acosta's recommendations in full. (Order, ECF No. 40.) Because Franson failed to seek leave of the court before filing that complaint, it was stricken. Franson v. United States, Case No. 3:19-cv-01983-AC, 2021 WL 2229045 (D. Or. June 2, 2021). In a subsequent order, the court granted Franson leave “to file an amended complaint alleging only a medical malpractice claim against the United States based on Dr. Bang's failure to evaluate Franson in person before stopping Franson's opioid prescription.” (Order, ECF No. 41.) The court specifically ordered that Franson's complaint “may not include claims for breach of contract or libel previously dismissed.” (Id.)
Franson filed his Third Amended Complaint (TAC) on June 22, 2021. (TAC, ECF No. 44.) Despite the court's order directing Franson to allege only a claim for medical malpractice, he continues to allege that Dr. Bang breached a “valid opioid contract” and that VA physicians included “libel” in his medical records. (See id. ¶¶ 12-14, 15(b), 16, 35-36, 49-52, 53.) This action was reassigned to Magistrate Judge Jeff Armistead on March 23, 2022. (ECF No. 51.)
On January 6, 2022, Franson also filed a related case asserting libel and medical malpractice claims against the United States, the VA, and Meera Ramachandran, M.D., a VA physician. Franson v. U.S., Case No. 3:22-cv-0028-AC, 2022 WL 2612129 (D. Or. Jan 27, 2022). On January 27, 2022, Judge Acosta issued an F&R recommending dismissal of that action with prejudice because it was duplicative of this earlier-filed action. Id. at *5. Before that F&R could be considered by a district judge, Franson voluntarily dismissed that action. (Case No. 3:22-cv-0028-AR, Order of Dismissal, ECF No. 8.)
B. Franson's Medical History
The following facts are viewed in the light most favorable to Franson. See Wright v. Beck, 981 F.3d 719, 726 (9th Cir. 2020) (on summary judgment, a court must view the facts in the light most favorable to the non-moving party). Unless indicated, the facts are undisputed.
1. VA providers
Franson is a veteran with a history of multiple chronic pain issues, including rotator cuff tears, tendonitis, and lower back pain. (Decl. of Patrick Conti ¶ 2, Ex. 2 at 1; Id. ¶ 8, Ex. 7 at 1, ECF No. 54.) He has received pain management treatment from VA office in Portland, Oregon since at least 2011. (Id. ¶ 2, Ex. 3 (Franson Dep.) at 2:1-5.) Franson's primary care physician (PCP) at that time was Gary Glasser, M.D. (Id.) During that period, Franson also used nonmedical marijuana to manage his pain. (Id. at 16-25.)
Beginning in 2011, Dr. Glasser prescribed Franson codeine to assist with pain management. (Id. at 2:1-5.) On May 25, 2011, as part of that treatment plan, Franson entered a “Pain Medicine Agreement” regarding the “[u]se of Opioid (Narcotic) Medicines for Chronic Pain.” (Conti Decl., Ex. 2 at 1.) The agreement described the “goals, possible side effects and risks, and rights and responsibilities associate with opioid treatment” and explained:
Opioid (or narcotic) medicines may be used as one part of a combined approach to treating pain. Opioid medicines rarely cause pain to go away completely. Making pain relief the only goal of chronic pain treatment often leads to disappointment. The goals of using an opioid medicine are to (1) improve overall function, and (2) decrease pain when possible, in a safe manner.(Id.) The agreement further explained that “[a]lthough some people can become tolerant to opioids, it is rare for people who use them as prescribed to become addicted. Addiction means there is a “psychological craving for the medicine and taking more medications than prescribed.” (Id. at 3.) Given the potential for addiction, the document explained:
Many providers do not believe it is safe for patients to use alcohol with opioid medicines. However, some feel it is safe for some patients to drink small amounts of alcohol in some situations. Some patients use, or wish to use medical marijuana prescribed by non-VA providers. [The patient] will discuss these issues with [his] provider.(Id.) “Because some patients who abuse alcohol or street drugs don't tell their provider about it,” the agreement stated that a “provider may request urine tests to look for unprescribed or illegal drugs and alcohol” and “if the test is positive for unprescribed drugs or alcohol, [the] provider may decide it is unsafe or inappropriate to prescribe opioid medicines.” (Id. at 3-4.)
As part of the Pain Management Agreement, Franson agreed to avoid or limit his use of alcohol. (Id. at 5.) Franson continued to use marijuana, however, which he purchased directly from a “grower” in Portland because he did not have a medical marijuana card. (Franson Dep. at 16:6-21.) On urinalysis tests between 2011 and 2014, Franson consistently tested positive for THC. (Id. at 15:19-21; Conti Decl. ¶¶ 5-6, Exs. 4-5 (Lab Results Letters from November 5, 2012, and October 18, 2013).) Despite those results, Dr. Glasser continued to prescribe Franson codeine during that period. (Franson Dep. at 14:2-15:8.)
After Dr. Glasser retired in 2014, Dr. Bang became Franson's PCP at the VA. Dr. Bang was “uncomfortable” with Franson's combined use of nonmedical marijuana and codeine. (Franson Dep. at 15:9-15; 17:1-8.) After Franson tested positive for THC on March 23, 2015, Dr. Bang called him to discuss his concurrent use of both substances. (Id. at 17:9-20; Conti Decl. ¶ 7, Ex. 6.) Dr. Bang informed Franson that he had a choice between marijuana or opioids, and stated his intention to discontinue Franson's codeine prescription if he continued to test positive for THC. (Franson Dep. at 17:9-20; Conti Decl. ¶ 7, Ex. 6.) After Franson pushed back on that ultimatum, Dr. Bang agreed to taper Franson's codeine prescription instead by halving his next dose for pick up. (Franson Dep. at 17:9-20; Conti Decl. ¶ 7, Ex. 6.)
Following that conversation, Franson continued to use nonmedical marijuana and requested-through various patient advocacy avenues-that Dr. Bang continue to taper his codeine prescription instead of discontinuing it outright. (Conti Decl. ¶ 8, Ex. 7; Franson Dep. at 17:9-20.) A progress note written by Dr. Bang on April 22, 2015, reflects that Franson's request was granted:
Spoke with veteran extensively and we have agreed to compromise. Will continue taper of codeine with the following:
112 tabs / 28 days for pickup 4/24/15
56 tabs / 28 days for pickup 5/22/15
then stop. No further narcotics will be given past May without appropriate UDS. Veteran understands this and is appreciative of PCP compromise and willing to understand his chronic pain.(Conti Decl. ¶ 8, Ex. 7). Following an appointment on May 4, 2015, Dr. Bang continued to taper Franson's codeine by prescribing 56 tablets over 28 days-in other words, 25 percent of Franson's original prescription-for pickup on May 22, 2015 (as described in the April 22 progress note). (Id. ¶ 9, Ex. 8.) On June 22, 2015, Dr. Bang renewed the 56-tablet prescription for a final time, providing Franson codeine through July 27, 2015. (Id.; Franson Dep. at 17:2418:8.) Franson testified that, throughout the taper, he never experienced withdrawal symptoms. (Franson Dep. at 19:1-21:8; 40:20-23; 44:20-25.) He still had sixteen codeine tablets when his prescription expired on July 27, 2015. (Id. at 30:17-25.)
2. OHSU providers
Since 2011, Franson has also received care from Oregon Health & Sciences University (OHSU). (Id. at 18:16-24.) After Dr. Bang notified Franson that his codeine prescription would be tapered and discontinued if he persisted using marijuana, Franson met with his OHSU provider, Daniel Stein, PA-C, on April 15, 2015. (Id. at 19:7-17; Conti Decl. ¶ 11, Ex. 10.) Franson's medical records of that meeting reflect that he was “very frustrated with his situation” and “trying to get a new provider at the VA” who would prescribe him codeine despite his continued marijuana use. (Conti Decl. ¶ 11, Ex. 10 at 1.) PA Stein refused to prescribe Franson narcotics, suggested that he “stop smoking [THC]” and follow up with the VA, and told him that “there are no other clinics in the [OHSU] system that will entertain [THC] and opiate use together.” (Id. at 2, 9.) Franson testified that “[PA Stein] thought that the pain relief - that it would be better served if I went off the THC.” (Franson Dep. at 23:21-24.)
Franson had a follow-up appointment on May 27, 2015, to discuss how PA Stein was “going to treat him with pain medication.” (Conti Decl. ¶ 12, Ex. 11.) PA Stein again declined to prescribe Franson an opioid pain medication and noted in Franson's record:
At this point his tone and body language felt aggressive and threatening/bullying about pain medication. I told him that at this time I do not feel comfortable prescribing any opiate pain medication. He is still on a pain contract with the VA, receiving opiates from the VA. Also with his redemonstrated aggressive nature toward me and his VA provider, I do not feel he is a good candidate to receive opiate medication through our clinic. I understand he is frustrated but he has shown an unwillingness to follow set policy with the VA and be respectful in a professional setting.(Id. at 2.) Nicholas Gideonse, M.D.-the OHSU clinic's medical director-reviewed Franson's medical record on June 1, 2015, and wrote that he saw a “reasonable care plan.” (Id. at 4.)
After PA Stein refused to prescribe Franson opioid medication, Franson “terminated” PA Stein as his PCP. (Franson Dep. at 18:16-24.) Franson started visiting Dr. Gideonse directly for treatment. (Conti Decl. ¶ 14, Ex. 13.) On July 31, 2015, Dr. Gideonse prescribed Franson 45 30mg codeine tablets to be used “as needed for pain” over a 28 day period. (Id.; Franson Dep. at 32:3-18.) Dr. Gideonse continued Franson's codeine prescription for a “couple of months” until Franson accidentally ingested cocaine after buying “some cannabis on the black market down at the waterfront.” (Franson Dep. at 32:20-25; 33:1-25.) Following Franson's urinalysis result, Dr. Gideonse refused to prescribe him codeine. (Id. at 32:24-25.)
Franson acquired a medical marijuana card in November 2015. (Id. at 16:21-23.)
3. VA return and Legacy providers
In 2016, Franson unsuccessfully sought codeine from the VA and Legacy Good Samaritan Pain Management Center (Legacy). On February 16, 2016, he met with a new VA PCP, Meera Ramachandran, M.D., to discuss his pain management options and request “to return to the codeine he received before.” (Conti Decl. ¶ 14, Ex. 13 at 2.) Dr. Ramachandran refused to prescribe codeine, noting that Franson had “stated an unwillingness to trial an increase in gabapentin” and had not meaningfully engaged in other recommended pain modalities, such as physical therapy, swimming, and yoga. (Id. at 2-3.)
Franson then sought treatment from Legacy. (Conti Decl. ¶ 15, Ex. 14.) During a phone interview on May 16, 2016, Franson told a Legacy representative that “no one will medicate or treat my pain,” that the VA had “discontinued his pain agreement due to marijuana in his UDS,” and that his OHSU PCP would not prescribe him opioids due to a “misunderstanding.” (Id. at 1.) Franson explained that he was “concerned because he sometimes has to self-medicate with alcohol, and he has a history of alcohol abuse.” (Id.) After reviewing Franson's statement and referral with Legacy physicians, the representative informed Franson that Legacy “agree[d] with his PCP in that we would not be recommending/restarting any opioid medications.” (Id.; Franson Dep. at 43:11-19.)
C. Expert Witness Disclosures
Franson disclosed Dr. Gideonse, who is his current PCP, as an expert witness. Dr. Gideonse proffered a one-page expert report, which is based on his review of Franson's medical records and professional care of Franson from July 21, 2015, though the present. (Conti Decl. ¶ 16, Ex. 15.) Based on that care and his experience as a family physician and clinic medical director, Dr. Gideonse writes:
It is my opinion that the discontinuation of modest, controlled opioid pain prescribing for Mr. Franson's musculoskeletal pain in March of 2015 did not meet standards of care for human and compassionate care of chronic pain; that the transition of primary care from Dr. Glasser to Dr. Bang was performed without due communication and continuity; that cannabis is not a (neither absolute nor immediate) contraindication to responsible opioid prescribing.(Id.)
The United States disclosed Kelly R. White, M.D. as its expert witness. Dr. White is Board Certified in family medicine and has 34 years of primary care practice experience. (Id. ¶ 17, Ex. 16.) Based on her review of Franson's medical records, Dr. White noted that VA providers “attempted on numerous occasions to offer alternative medication treatments and other alternative treatment modalities” and that, “it doesn't appear that there was any gap in codeine prescribing as Mr. Franson transitioned care from the VA to Dr. Gideonse.” (Id. at 9.) Dr. White stated that, in her experience:
Tolerating polysubstance use in the setting of prescribing controlled substances is not standard practice, especially in the setting of street drugs. After the retirement of Dr. Glasser, it is completely reasonable for VA providers new to Mr. Franson to reevaluate the appropriateness of his medication regimen in the setting of THC use and to not continue tolerating the combined use of THC and codeine.(Id. at 8.) Dr. White opined that “while Dr. Glasser tolerated the use of THC while prescribing codeine, it was not only medically appropriate, but would have been negligent for the subsequent VA medical providers to continue that practice.” (Id. at 9.) Overall, she concluded that the care provided by the VA to Franson “as it related to the decisions and actions surrounding the tapering and discontinuation of codeine is within the standard of care and reasonable.” (Id.)
LEGAL STANDARD
Summary judgment is appropriate if “there is no genuine dispute as to any material fact” and “the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324 (citing FED. R. CIV. P. 56(e)). A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). However, deference to the nonmoving party has limits. A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIV. P. 56(c). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
DISCUSSION
Franson's medical malpractice claim arises under Oregon law. See Goodman v. United States, 298 F.3d 1048, 1054 n.6 (9th Cir. 2002) (“Under the FTCA, the liability of the United States is determined ‘in accordance with the law of the place where the [allegedly tortious] act or omission occurred.'”) (quoting 28 U.S.C. § 1346(b)). To succeed on a claim for medical malpractice under Oregon law, “the plaintiff must show ‘(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff; and (4) a causal link between the breach and the harm.'” Bell v. United States, Case No. 3:15-cv-02176-SB, 2017 WL 4248184, at *2 (D. Or. Aug. 29, 2017) (quoting Moser v. Mark, 223 Or.App. 52, 55-56 (2008)).
The United States moves for summary judgment on the grounds that Franson has not presented any evidence from which a reasonable jury could find that the VA and Dr. Bang breached the applicable standard of care or caused his alleged injuries. (Mot. Summ. J. at 11; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“If the defendant in a run-of- the-mill case moves for summary judgment . . . based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”).) Franson counters that his medical malpractice claim is factually supported and that a jury reasonably could find that Dr. Bang's decision to “cancel” his codeine prescription was without “reason or cause.” (Pl.'s Resp. at 2-3, 13.)
A. Breach of Standard of Care
Turning to the government's first argument, the court must determine whether there is sufficient evidence from which a jury reasonably could find that the VA and Dr. Bang breached the applicable standard of care. Under Oregon law, “[a] physician licensed to practice medicine or podiatry by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community.” ORS § 677.095. “In most medical malpractice cases, expert testimony is required to establish the standard of care in the community.” Bell, 2017 WL 4248184, at *2 (citing Trees v. Ordonez, 354 Or. 197, 207 (2013)); see also Getchell v. Mansfield, 260 Or. 174, 179 (1971). “The rationale behind that rule is that a layperson typically would not know what an ‘ordinarily careful' [physician] would do under the circumstances.” Trees, 354 Or. at 207.
Franson's expert, Dr. Gideonse, opined that “the discontinuation of modest, controlled opioid pain prescribing . . . in March 2015 did not meet standards of care for humane and compassionate care of chronic pain.” (Conti Decl. ¶ 16, Ex. 15.) The government argues that, even assuming that Dr. Gideonse accurately articulates the applicable standard of care, Franson has presented no evidence from which a jury reasonably could find that Dr. Bang and the VA breached that standard. (Def.'s Mot. Summ. J. at 12.) The court agrees.
Undisputed facts in the record reflect that, after Franson refused to stop using nonmedical marijuana alongside his prescribed pain medication in March 2015, Dr. Bang tapered Franson's codeine prescription for four months, rather than discontinuing it outright. (Conti Decl. ¶ 8, Ex. 8 at 2 (taper instructions for April and May; June addendum: “Continue slow gradual taper per last month's visit.”).) At the end of that taper in July 2015, Franson still had sixteen codeine tablets remaining. (Franson Dep. at 30:17-25.) And Franson consistently testified that he did not experience withdrawal symptoms during that taper. (Id. at 19:1-21:8; 40:20-23; 44:20-25.) Therefore, there are no facts from which a jury reasonably could find that Dr. Bang and the VA “discontinued” Franson's codeine prescription in March 2015 or otherwise failed to provide “humane and compassionate care.” See Anderson, 477 U.S. at 252 (nonmoving party must come forward with evidence from which a jury could reasonably render a verdict in the nonmoving party's favor).
Dr. Gideonse also opined that Dr. Bang's decision to taper and eventually discontinue Franson's codeine prescription based on his persistent use of nonmedical marijuana breached the standard of care because “cannabis is not . . . contraindication to responsible opioid prescribing.” (Conti Decl. ¶ 16, Ex. 15.) The court construes that opinion in the light most favorable to Franson, but nevertheless finds that it does not establish a genuine dispute of material fact as to the element of breach for two reasons.
First, it is unclear whether Dr. Gideonse's opinion refers only to the use of medically authorized marijuana alongside prescribed opioid medication or extends also to the use of marijuana that is purchased from a “grower” on the street. That omission is significant. Although there is some support for his position that concurrent use of medical marijuana and opioid medications can fall within the standard of care, there are no facts from which a jury could reasonably conclude that prescription of opioids alongside the known use of street-acquired marijuana falls within the standard of care. For instance, the “Pain Medicine Agreement” that Dr. Glasser provided Franson when he first prescribed codeine in 2011 acknowledged that “some patients use, or wish to use medical marijuana prescribed by non-VA providers,” but cautioned that if the patient tests positive for “illegal drugs or alcohol,” the “provider may decide it is unsafe or inappropriate to prescribe opioid medicines.” (Conti Decl., Ex. 2 at 1, 3-4.)
When many of the events giving rise to this action occurred, the use of marijuana without a medical card was not legal under Oregon law. In the November 2014 general election, Oregon voters adopted Measure 91, which legalized the production and sale of marijuana for recreational use under state law. See State v. Heaton, 308 Or.App. 694, 697 (2021). Franson acquired a medical marijuana card in November 2015. (Franson Dep. at 16:21-23.)
Second, the record strongly suggests that Dr. Bang's decision to taper Franson's codeine prescription because he refused to stop using nonmedical marijuana falls within the standard of care applicable in the community. The government's expert, Dr. White, opined that “[t]olerating polysubstance use in the setting of prescribing controlled substances is not standard practice, especially in the setting of street drugs” and that it was “completely reasonable for VA providers new to Mr. Franson to reevaluate the appropriateness of his medication regimen in the setting of THC use and to not continue tolerating the combined use of THC and codeine.” (Id. ¶ 17, Ex. 16 at 8.) In line with that opinion, PA Stein, Dr. Ramachandran, and Legacy medical providers all declined to prescribe Franson codeine, citing his continued use of nonmedical marijuana, stated unwillingness to trial alternative medications, and failure to meaningfully engage in other recommended pain modalities. (Conti Decl. ¶¶ 11, 14-15, Exs. 10, 13-14.) And although Dr. Gideonse initially prescribed Franson codeine when he assumed care in July 2015, he refused to renew that prescription after Franson tested positive for cocaine on a urinalysis exam. (Franson Dep. at 32:20-25.)
Franson also contends that Dr. Bang and the VA breached the applicable standard of care by “cancelling the opiate agreement with Dr. Glasser,” under which he was implicitly “allowed to consume cannabis” alongside the codeine prescription. (Pl.s' Resp. at 4.) This court has already dismissed Franson's breach of contract claim, however, explaining that it lacked subject matter jurisdiction and that his allegations did not support the existence of a contract binding Franson and Dr. Bang, the VA, or the United States. (F&R at 9, ECF No. 36.) Even assuming that claim was viable, the “Pain Medicine Agreement” on which Franson relies specifically states that a “provider may request urine tests to look for unprescribed or illegal drugs and alcohol” and “if the test is positive for unprescribed drugs or alcohol, [the] provider may decide it is unsafe or inappropriate to prescribe opioid medicines.” (Conti Decl. ¶ 3, Ex. 2.) Thus, the undisputed record reflects that Franson breached the written terms of that agreement when he tested positive for THC and cocaine.
Because the undisputed evidence-viewed in the light most favorable to Franson-does not create a genuine issue of material fact as to whether Dr. Bang and the VA breached the standard of care, the United States is entitled to judgment as a matter of law.
B. Causation and Harm
As an independent ground for summary judgment, the record lacks evidence from which a jury reasonably could infer that Dr. Bang and the VA caused Franson's alleged harm.
When a claim for medical negligence “‘is premised on general principles of foreseeability, the plaintiff must plead and prove that the defendant's conduct created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff and that the conduct in fact caused harm to the plaintiff.'” Bompane v. Wellpath LLC, Case No. 3:22-cv-00357-AR, 2023 WL 2245685, at * (D. Or. Jan. 5, 2023) (quoting Chapman v. Mayfield, 358 Or. 196, 205 (2015)). Although not every medical case requires expert testimony to establish causation, “as a general rule, a plaintiff in a medical malpractice case must offer expert testimony that, to a reasonable medical probability, the alleged breach of the standard of care caused the plaintiff's injuries.” Chouinard v. Health Ventures, 179 Or.App. 507, 512 (2002).
Franson alleges that every day he “does not have a small amount of prescribed opioids” causes him “debilitating” pain. (Id. ¶¶ 48, 52.) He has not presented a declaration or other evidence to support the existence of that alleged harm, however. Indeed, the record lacks any evidence that Franson experienced pain flare ups or withdrawal symptoms while Dr. Bang was tapering his codeine prescription between March and July 2015. And notably, Franson did not exhaust his supply of codeine during the taper, suggesting that he was able to adequately manage his pain despite the reduced prescription. Given the absence of evidence of harm or causation, Franson has not raised a genuine issue of material fact sufficient to preclude summary judgment on those elements. Accordingly, the United States is entitled to judgment as a matter of law.
CONCLUSION
For the above reasons, the United States' motion for summary judgment (ECF No. 53) should be GRANTED. Any other pending motions should be DENIED as MOOT.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a District Judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.