Background
Gloria Halper alleged that a hearing-clinic employee performed an unlicensed earwax-removal procedure during a hearing test and injured her. She sued her health insurer, Providence Medicare Advantage Plan, and TruHearing, the company that referred her to the clinic.
The Multnomah County Circuit Court granted both defendants’ motions to dismiss the first amended complaint for failure to state a claim under ORCP 21 A(1)(h). The court dismissed the action with prejudice, and Halper appealed.
The Court’s Holding
The Oregon Court of Appeals affirmed in a nonprecedential per curiam memorandum opinion. Assuming the pleaded allegations were true and drawing reasonable inferences in Halper’s favor, the court held that the complaint did not allege facts sufficient to make Providence or TruHearing liable for malpractice by the clinic or its employee. Neither defendant provided Halper medical care, and their referral was only for a hearing test.
The court concluded that the allegations did not establish that an unlicensed earwax-removal procedure was a foreseeable consequence of referring Halper for a hearing test. The complaint also failed to identify and support a specific legal theory connecting the defendants to the clinic’s alleged negligence; any contract or privacy theories were inadequately pleaded as well.
The trial court also acted within its discretion by dismissing with prejudice. Halper had already received an opportunity to amend after failing to state a claim, and she identified nothing in the record suggesting that another amendment could cure the deficiencies.
Key Takeaways
- A referral for a hearing test did not, on the facts alleged, make the insurer or referral company liable for an unlicensed procedure later performed by a clinic employee.
- A complaint seeking to hold a referring party responsible for another provider’s negligence must identify a viable legal theory and plead facts supporting each element of that theory.
- Dismissal with prejudice may be permissible when a plaintiff has already had an opportunity to amend and the record does not indicate that further amendment could cure the pleading defects.
Why It Matters
The decision illustrates the pleading barrier plaintiffs face when attempting to impose liability on health plans or referral services for independent providers’ conduct. Allegations that a defendant made a referral, without facts supporting foreseeability and a recognized basis for derivative or direct liability, are insufficient.
The opinion is nonprecedential under ORAP 10.30 and may not be cited except as that rule permits.