UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ESTATE OF K.C. (a minor), by and through 

her mother, STEPHANIE SHORB; and 

STEPHANIE SHORB, 

Plaintiffs, 

v. 

LIPA (LANE INDIVIDUAL PRACTICE 

ASSOCIATION); OREGON HEALTH 

AUTHORITY; JOHN E. SATTENSPIEL, 

LIP A Senior Medical Director; and TERRY 

COPLIN, LIPA Former CEO, 

Defendants. 

COFFIN, Magistrate Judge: 

6: 14-cv-1889-TC 

FINDINGS & RECOMMENDATION 

Plaintiffs bring this action asserting claims for substantive due process violations, wrongful 

death, and breach of contract related to Stephanie Shorb's daughter's death at the age of four on 

November 22, 2011. 

Plaintiff Stephanie Shorb's daughter, plaintiffK.C., was diagnosed in 2009 with ulcerative 

colitis. The Oregon Health Plan, administered by defendant Lane Individual Practice Association 

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(LIPA), covered K.C. Doembecker's Children's Hospital performed a colectomy in hopes of curing 

the disease, but residual colitis remained. 

Oregon doctors then prescribed Remicaid in an effort to control K.C.'s condition. However, 

Remicaid is a "black label" drug with serious side effects and not recommended for children under 

the age of six. Plaintiffs allege that while the drug never produced positive results, the doctors 

simply increased the dosage rather than try other tumor necrosis factor (TNF) blockers. 

Consequently, through the intervention of a social worker at Care Oregon, K. C. sought out treatment 

from the Children's Hospital in Seattle for a different course of treatment. 

K. C.'s Eugene pediatrician, Dr. Pilar Bradshaw, requested authorization from LIP A for K. C. 

to receive ongoing treatment from the Seattle Children's Hospital. LIPA initially granted 

authorization, but in October of2011, LIP A's senior medical director, defendant John Sattenspiel, 

denied treatment. Sattenspiel, along with the CEO of LIPA, defendant Terry Coplin, allegedly 

determined that treatment options were available at Oregon Health and Sciences University ( OHSU) 

and Legacy Emanuel Hospitals. 

Plaintiffs allege that LIP A's decision, based on an administrative rule that prohibits out of 

service area care for non-emergency service when such services are available in area, failed to 

recognize that K. C.'s care was an emergency situation despite Dr. Bradshaw's and the Seattle doctor's 

finding that the need for care was "urgent." Plaintiffs further allege that LIP A failed to consider that 

care at the Seattle hospital (based on the existing relationship) would have been more cost-effective 

which also permits the coverage under the cited rule. Finally, plaintiffs allege that LIP A ignored the 

medical expertise of the Oregon doctor who referred K.C. to Seattle for care. 

In the first claim, plaintiffs allege that defendants Sattenspiel and Coplin violated K.C.'s 

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Fourth and Fourteenth Amendment rights via deliberate indifference to her serious medical needs 

resulting in her death. In the second claim, plaintiff allege Monell liability against defendant LIP A. 

In their third claim, plaintiffs allege a wrongful death claim against the Oregon Health Authority 

(OHA) (which administers the Oregon Health Plan for the entire State) and LIPA via a theory of 

vicarious liability for the actions ofSattenspiel and Coplin. Finally, plaintiffs allege claim for breach 

of contract against LIP A and OHA for breach the duty to authorize the medical care at issue. 

OHA moves to dismiss the claims against it pursuant to the Eleventh Amendment. 

The Eleventh Amendment provides: 

"The Judicial power of the United States shall not be construed to extend to any suit 

in law or equity, commenced or prosecuted against one of the United States by 

Citizens of another State, or by Citizens or Subjects of any Foreign State." 

The Amendment affirms the fundamental principle of sovereign immunity which limits the grant of 

judicial authority in Article III of the Constitution. Pennhurst State School and Hospital v. 

Halderman, 465 U.S. 89, 98 (1984) (Pennhurst II). 

A State's Eleventh Amendment protection from suit has been extended to suits broughtby 

a State's own citizens, Hans v. Louisiana, 134 U.S. 1, 10 (1890), and suits invoking the federal 

question jurisdiction of Article III. Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1131-32 

(1996). 

The OHA, is also immune from suit under the Eleventh Amendment. See Shaw v. 

California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (91

h Cir. 1986) (a suit against a 

State agency is considered to be a suit against the State, and thus is barred by the Eleventh 

Amendment). "When suit is commenced against state officials, even if they are ri.amed and served 

as individuals, the State itself will have a continuing interest in the litigation whenever State policies 

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or procedures are at stake." Idaho v. Coeur d'Alene Tribe ofidaho, 117 S.Ct. 2028, 2034 (1997). 

There are, however, two well-established exceptions to the reach of the Eleventh 

Amendment. First, Congress may abrogate the States' constitutionally secured immunity by 

expressing, in unmistakably clear language, its intention to allow the States to be sued in federal 

court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234,242-243 (1985). Second, astatemaywaive · 

its Eleventh Amendment immunity and consent to be sued in federal court. I d. at 241; Clark v. 

Barnard, 108 U.S. 436, 447 (1883). "[A] state will be deemed to have waived its immunity 'only 

where stated by the most express language or by such overwhelming implication by the text as [ w ]ill 

leave no room for any other reasonable construction."' Atascadero, 473 U.S. at 239-240 (quoting 

Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal quotation omitted)). 

"Although a state's general waiver of sovereign immunity may subject it to suit in state court, 

it is not enough to waive the immunity guaranteed by the Eleventh Amendment." Atascadero, 4 73 

U.S. at 241. Here, the State has not consented to having the state law claims asse1ied against the 

OHA heard in federal court. 

Plaintiffs apparently concede that the Eleventh Amendment bars the claims against OHA. 

Plaintiff does not provide argument against immunity, but asserts an involuntarily dismissal is 

necessary to toll the statute of limitations with respect to the filing of the case in state court. That 

issue cannot be determined by this court. The motion to dismiss should be granted. 

Ill 

Ill 

Ill 

Ill 

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CONCLUSION 

For the reasons stated above, the motion to dismiss (#22) should be granted and defendant 

Oregon Health Authority should be dismissed from this action. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's judgment or appealable order. The 

parties shall have fo.-qrteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fourteen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a pmiy's right 

to de novo consideration of the factual issues and will constitute a waiver of a party's right to 

appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. 

DATED this doday ofMarch 2015. 

THOMASM. C 

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