Imagine that you’ve been sitting in the doctor’s exam room for an hour after getting your blood pressure checked — when an assistant tells you the specialist you flew 3,000 miles to see is out of the office on vacation.
Frustrated patients on internet chat boards have often wondered if they can sue their doctor’s office for canceling an appointment. The typical answer is, “No way.”
But Dan Norris, who splits his time between eastern Oregon and Massachusetts, chose a different response. And the 65-year-old recently won an undisclosed settlement from Oregon Health & Science University for his troubles, shedding light on an obscure area of law.
In four months, Norris had his health care provider cancel not one, but two appointments — both times an important check-in for which he’d traveled to Portland from the other side of the country.
Even when doctors cancel appointments that are not high-stakes, they illustrate a power imbalance that some find frustrating. When patients cancel, they risk a hefty fee, but the provider can cancel seemingly at will.
While most patients don’t sue, most patients are not attorneys with a strong sense of justice, like Norris.
Asked by The Lund Report to read filings from the recently settled lawsuit, David Friedman, a contracts attorney and professor at Willamette University College of Law, said he was surprised that “somebody actually had the guts to do this.” He called Norris “a hero for our time.”
Friedman added, “People get really upset about these things, and I think we can all relate to that kind of frustration. Because it happens to us all the time and in so many different contexts.”
An OHSU spokesperson declined to comment on the specifics of the case, citing patient confidentiality. But they issued a statement that “generally speaking, scheduling appointments can be a challenge for a number of reasons, and when we fall short, we endeavor to apologize for any inconvenience or distress, work with affected individuals to address any issues or concerns, and take steps to prevent them from recurring.”
“People get really upset about these things, and I think we can all relate to that kind of frustration. Because it happens to us all the time and in so many different contexts,”
Life-saving medical care
“It was the principle of the thing,” Norris told The Lund Report regarding his reasons for filing suit.
“Probably no lawyer would have taken the case because there was not enough money involved. But I have a severe disability and travel is really hard for me,” he said, adding that he was “just angry enough” to sue.
As a self-described “systems guy,” Norris said he blamed the support system that led to the cancellations, not his doctor. In fact, he praises his neurologist and OHSU for top-notch, life-saving care.
“Without the quality care they give me, I wouldn’t be here,” he said.
Norris spent 30 years arguing cases in front of judges as a local district attorney and, later on, as the Oregon Department of Justice's first statewide elder abuse prosecutor.
More recently, when the state declared a crisis in which defendants were being deprived of their civil rights due to a lack of defense attorneys, Norris responded to the state’s call for help, representing the defendants he once prosecuted. Justice is not served when one side is not doing its job, he said.
Years ago, he contracted a form of Guillain-Barre syndrome, a chronic, progressive neurological condition called neurofascin nodopathy. He spent seven months as a paraplegic on a ventilator and credits his doctor for finding the right medication to help him.
His condition needs to be monitored with hands-on exams for reflexes, strength and nerve damage. That can be a challenge since he and his wife spend part of their year in eastern Oregon and the rest in Eastham, Massachusetts, a small coastal town.
“Probably no lawyer would have taken the case because there was not enough money involved. But I have a severe disability and travel is really hard for me,”
Costly cancellations
Court filings tell the tale of what drove Norris to sue.
In August of 2022 he planned a week’s stay in Portland for which he scheduled three appointments, including with the OHSU neurology department. He flew 3,000 miles for the week’s stay, only to have his neurologist’s office cancel after he got to Oregon. The doctor was taking a vacation.
So he drove 400 miles to his home in Vale, Oregon, to spend a couple of weeks while he waited for a new appointment.
He drove another 400 miles to Portland for the rescheduled appointment on Sept. 2, where he expressed his disappointment to his doctor over lost work time.
He flew back to Massachusetts. With his condition progressively worsening, he prepared for a new appointment with the same specialist on Dec. 5.
On Dec. 4, he received an electronic notice advising him to check in for the appointment in advance, which he did before boarding another cross-country flight to Portland.
He arrived at OHSU and was checked in to the appointment room where his doctor’s staff took his vital signs.
After an hour, he was told that his specialist was again on vacation.
Office staff tried to book him an appointment with a different specialist the next day, and he changed his travel plans to stay.
But his specialist called him that evening and told him the other doctor was not equipped to provide the care Norris needed. The specialist changed some medications for Norris, but the phone call lacked the normal physical exam and was not documented or billed as a normal appointment would be.
Norris filed his suit the following March, after the university failed to reimburse him for his costs.
Suit alleged contract violation
Norris’ lawsuit accused OHSU of breaching a contract created by offering an appointment to provide medical care that Norris had accepted.
Katie Eichner, an attorney with the prominent Portland health care law firm Lindsay Hart, defended OHSU against Norris’ suit. A former board member of the corporate law defense group, the Oregon Association of Defense Counsel, she serves as president of the Oregon Society for Healthcare Risk Management.
Eichner minimized Norris’ claim in an October 23, 2023 Multnomah Circuit Court hearing saying, “The defense position is that offering medical appointments and having a patient say ‘that day works for me,’ is not sufficient to form a legally binding contract.”
But, she added, “This is an issue which has, as far as I can find, Your Honor, has not been decided by the Oregon appellate courts.”
Responding, Norris called her argument that the appointment was not a contract “rather curious” in light of the nearly $1 million that OHSU had collected from him and his insurance company over the years while providing care for his illness.
Judge Leslie Bottomly granted OHSU’s motion to dismiss, saying, “An appointment is a plan or an arrangement, but not a contract unless the other party expresses that they will not cancel the appointment.”
A crucial detail
Norris filed an amended suit one week later, this time including a detail he’d omitted from the earlier one.
According to the new suit, when he spoke with his specialist in his rescheduled Sept. 5, 2023 appointment, he talked about the time he’d lost, and the neurologist promised not to cancel on Norris again.
The revised lawsuit sought $8,449.19 for travel costs and lost time, plus attorney fees.
On May 2, OHSU and Norris agreed to dismiss the case after the university agreed to what Norris calls a “fair” settlement.
It's unclear if OHSU settled the case because it feared losing or because the case represented a “bad look,” Friedman said. But the new detail of Norris’ doctor’s promise was important, as was the fact that OHSU was aware of the special costs to Norris of canceling an appointment after flying across the country.
By highlighting such costs, Friedman said, the case may bear a broader lesson for OHSU, which specializes in complex cases as well as specialists that draw patients from all over the state, if not farther, to receive care.
“You're serving rural areas of the state. You’ve got to at the very least be considerate about those sorts of things,” Friedman said.
Norris, for his part, hopes that OHSU has fixed the system that kept causing cancellations.
He agrees with Friedman that he benefited from a set of “unique circumstances,” and normally patients don’t get to sue for canceled appointments.
“I think it was a pretty honest mistake, but it was a mistake nonetheless,” he added. “I'm glad that they realized that they made a mistake, and I’m glad that they did the right thing.”
He’s confident that if the case had gone to trial, he would have had a strong case.
“I don’t think that OHSU is in the business of handing out money when you don’t have a (legitimate) claim against them,” he said.
He is a hero, indeed. Thanks for this story.