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FILED: April 13, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DIXIE L. TAYLOR,
Personal Representative for the
Estate of Irma J. Taylor, Deceased,

Plaintiff-Respondent,

v.

PORTLAND ADVENTIST MEDICAL CENTER,
an Oregon corporation,

Defendant-Respondent,

and

GREGORY ROBINSON, M. D.;
and MARK R. ANDERSON, M. D.,

Appellants.

Multnomah County Circuit Court
070505420
A142219

Henry Kantor, Judge. (Orders - April 20 and 21, 2009)

Eric J. Bloch, Judge. (Order - May 15, 2009)

Argued and submitted on January 27, 2011, University of Oregon, Eugene.

Rachel Woods Arnold argued the cause for appellant Gregory E. Robinson, M.D. On the opening brief were Paul Silver and Lindsay Hart Neil Weigler. With them on the reply brief was Rachel Woods Arnold.

Lindsey H. Hughes argued the cause for appellant Mark R. Anderson, M.D. With her on the opening brief were Susan Mahoney and Keating Jones Hughes PC. On the reply brief were Lindsey H. Hughes and Keating Jones Hughes PC.

Maureen Leonard argued the cause for respondent Dixie L. Taylor. With her on the briefs was Robert Beatty-Walters.

Janet M. Schroer argued the cause and filed the brief for respondent Portland Adventist Medical Center.

Before Schuman, Presiding Judge, and Brewer, Chief Judge, and Duncan, Judge.

BREWER, C. J.

Affirmed.

BREWER, C. J.

Appellants, who are two physicians employed by defendant Portland Adventist Medical Center, appeal from separate orders denying their motions to intervene in this action for medical malpractice resulting in wrongful death, in which plaintiff, the personal representative of her mother's estate, sought damages against defendant hospital based on the alleged negligence of the physicians. We review the trial court rulings on the physicians' motions for permissive intervention under ORCP 33 C for the proper exercise of discretion. See Samuels v. Hubbard, 71 Or App 481, 692 P2d 700 (1984), rev den, 299 Or 118 (1985). We affirm.

Plaintiff is the personal representative for the estate of her mother, Irma Taylor. Irma Taylor died after having been seen, treated, and sent home by appellant Dr. Mark Anderson, an emergency department physician, at the emergency room of defendant's hospital. Plaintiff filed a complaint against defendant in this action on May 14, 2007. In her complaint, plaintiff alleged that defendant was negligent because of acts and omissions of its employee or agent, Dr. Mark Anderson, in failing to diagnose and treat the decedent's acute infection. In particular, plaintiff alleged that Anderson had evaluated the decedent in the emergency room and that the decedent had a fever and was suffering from myelodysplastic syndrome, "which increased her risk of infection." Plaintiff alleged that Anderson discharged the decedent later that evening with a diagnosis of acute febrile illness, and the next morning the decedent was found unresponsive in her home and was ultimately pronounced dead. Plaintiff did not join Anderson or any other person or entity besides defendant as a party to the action.

Defendant filed an answer in the action in which it denied plaintiff's allegations of negligence. However, defendant did not file a third-party complaint against Anderson or take any other steps to join any additional party in the action. Trial initially was set in the case for June 14, 2008. The parties later stipulated to a set-over of the trial date to January 2009.

Plaintiff deposed Dr. Anderson on January 21, 2008. During that deposition, plaintiff learned for the first time the extent to which Anderson had consulted with appellant Dr. Gregory Robinson, the decedent's primary care physician, and that Anderson believed that he and Robinson had made a joint treatment decision about the decedent's care, including her discharge from the emergency room. In September 2008, defendant tendered the defense of the action to Anderson, and Anderson's attorney was substituted as counsel for defendant.

On September 16, 2008, plaintiff deposed Robinson and questioned him about his consultation with Anderson. Robinson acknowledged that he had consulted with Anderson about the decedent's condition and treatment. Robinson testified that he had agreed with Anderson's decision to send the decedent home from the emergency room, but Robinson disagreed with Anderson's deposition testimony that the physicians had made a joint discharge decision. On November 11, 2008, plaintiff's counsel notified Robinson's attorney that she was considering adding Robinson as a named defendant. However, plaintiff's counsel later learned that Robinson, like Anderson, was an employee of defendant.

On December 18, 2008, plaintiff filed and served an amended complaint that added allegations of defendant's negligence for the acts or omissions of its employee or agent, Robinson. The amended complaint alleged that "Dr. Anderson and Dr. Robinson together and in concert" negligently misdiagnosed the decedent's condition and "together negligently determined" that she should be discharged from the hospital. All told, the amended complaint included six specifications of negligence, each of which alleged that the two physicians acted "together" or "in concert." After plaintiff filed the amended complaint, trial was reset for May 26, 2009.

In February 2009, defendant filed its answer to the amended complaint, in which it admitted that the two physicians were its employees acting within the course and scope of their employment.(1) Also in February 2009, defendant's own attorney was resubstituted, in place of Anderson's attorney, as counsel for defendant in the action.

On February 16, 2009, Robinson filed a motion to intervene in the action, and, on February 17, Anderson also filed a motion to intervene. In those motions, the physicians argued that a judgment against defendant could have an adverse effect on their professional licenses, credentials, and malpractice insurance coverage, in part, because of a perceived duty on defendant's part to report adverse medical malpractice judgments under federal and state law. In particular, the physicians argued that an adverse verdict would require defendant to issue reports to the National Practitioner Data Bank, 42 USC