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 P.2d 700 (1984), rev. den., 299 Or. 118, 700 P.2d 250 (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 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 U.S.C. § 11131 (requiring reports on medical malpractice payments), and the Oregon Medical Board (ORS 742.400(2)(a); ORS 742.400(4)), which, in turn, could trigger an investigation by that board. In addition, they asserted that their interests were in potential conflict with defendant's interests and that their interests also were in potential conflict with each other. The physicians also argued that their absence as parties might expose them to greater vulnerability to a later indemnity claim by defendant. In particular, they asserted that their employment agreements with defendant required them to fully "cooperate in good faith, using their best efforts" to defend any claims made.

In response, plaintiff argued that there was no conflict between or among defendant and the physicians, that any judgment against defendant would not have a direct adverse effect on the physicians, and that, to plaintiff's prejudice, the physicians had unduly delayed seeking intervention. Plaintiff also argued that she was permitted by law to choose to sue a vicariously liable defendant alone and should not be forced to sue the employees as well. As plaintiff saw things, intervention would give defendant and the physicians "three shots at my experts, three sets of experts," and extended opening statements.

On March 17, Judge Kantor held a hearing on the physicians' motions to intervene. At the hearing, the court engaged in the following colloquy with defendant's counsel about why defendant had not filed a third-party complaint for indemnity against the physicians:

Defendant's attorney explained that defendant and the physicians had made the deliberate decision that defendant would not sue the physicians for indemnity; instead, the physicians would seek to intervene and, by some method, resolve indemnity issues at the same time.

In its letter opinion denying the physicians' motions to intervene, the trial court stated:

On April 21, 2009, Judge Kantor entered a written order denying the physicians' motions to intervene.

On April 22, 2009, the case was assigned to Judge Bloch for trial. Robinson then filed a renewed motion to intervene, reasserting the arguments that he had asserted in his first motion to intervene.2 On May 5, defendant filed a written submission joining Robinson's motion to intervene. At oral argument on the motion, defendant's counsel argued that defendant intended to file a "third-party complaint or file a subsequent complaint against" the two physicians. The trial court pressed defendant's counsel about the nature of the asserted conflict between and among defendant's and the physicians' litigation positions. Defendant's counsel explained that a conflict existed because defendant would want the jury in this case to allocate fault between the two physicians in order to obviate the need for a subsequent indemnity action.

In particular, defendant's counsel stated:

Plaintiff replied that, based on the existing pleadings in the action—with or without the physicians' intervention—there could be no apportionment of liability or fault between the physicians. Plaintiff also argued that the problem defendant sought to obviate could have been avoided by the timely filing of a third-party action against the physicians under ORCP 22 C(1).

The trial court orally denied Robinson's motion, explaining that,

On May 15, 2009, Judge Bloch entered written orders denying the renewed motions to intervene. On May 19 and 20, 2009, the physicians timely appealed from the two separate trial court orders denying their motions to intervene.3 The trial court abated the proceedings before it pending this appeal.

"Intervention takes place when a third person is permitted to become a party to an action between other persons," by joining the plaintiff's claims, by uniting with the defendant to resist the plaintiff, or by demanding something adverse to both the plaintiff and the defendant. ORCP 33 A. ORCP 33 further provides, in relevant part:

As we said in Samuels,

71 Or.App. at 485-86, 692 P.2d 700.

In this case, defendant and the physicians acknowledge that intervention was not authorized as a matter of right under ORCP 33 B; instead, the physicians sought permissive intervention under ORCP 33 C. Accordingly, the first question is whether the physicians' motions met the requirements of ORCP 33 C. If so, we consider whether the trial court properly exercised its discretion in denying the motions. Id. We begin with the physicians' challenge to the May 15 orders denying the renewed motion for intervention because, as we will explain, those rulings reflected a proper exercise of discretion which obviates the need to address the earlier rulings embodied in the April orders concerting the initial motions to intervene.

The threshold question is whether the physicians "ha[ve] an interest in the matter in litigation." ORCP 33 C. Defendant and the physicians argue, based on other provisions of the Oregon Rules of Civil Procedure and decisions from other jurisdictions, that ORCP 33 C should be liberally construed in favor of intervention. That argument overstates the case for permissive intervention under Oregon law. As we held in Samuels, in that respect, ORCP 33 is consistent with case law construing its predecessor statute, ORS 13.130:

71 Or.App. at 488 n. 4, 692 P.2d 700. Of course, that formulation, however strict, is not self-defining. In fact, the parties differ at length about whether various of the physicians' posited interests qualify for permissive intervention. However, at the outset it is important to clarify how an adverse judgment against defendant in this case would not affect a direct and immediate interest of the physicians. As plaintiff, defendant, and the physicians acknowledge, if the physicians are not parties to this action, any judgment against defendant would have no preclusive effect against the physicians. That is so because the physicians can neither control the defense of this action—as noted above, defendant's own attorney was resubstituted as counsel for defendant in 2009—nor has defendant undertaken to represent their interests in the action.4 Accordingly, should defendant later bring an action against the physicians for indemnity, the physicians would be free to argue that they were not negligent at all in providing care and treatment to the decedent in this case. Moreover, the physicians could fully litigate, by means of cross-claims, whether and the extent to which either or both of them were at fault. Thus, in the most classic sense, without their permissive intervention, the physicians would suffer no direct and immediate economic effect from an adverse judgment at all.

For assistance in sorting out the legal sufficiency of the interests that the physicians do posit, we turn to previous cases. In Samuels, the plaintiff filed an action against L. Ron Hubbard alleging that Hubbard had committed various torts against the plaintiff through Hubbard's direction and control of the Church of Scientology of California, Inc., and the Church of Scientology, Mission of Davis. Hubbard did not appear in the case to defend the action, but the Church of Scientology of California and the Church of Scientology, Mission of Davis, moved to intervene as defendants. The trial court denied those motions, and the two churches appealed. In addressing the churches' arguments under ORCP 33 C, we considered purported interests that were similar to interests that the physicians advance in this case. First, we considered the churches' argument that the disposition of the case in their absence might, as a practical matter, impede their ability to protect their religious and reputational interests. We stated:

Samuels, 71 Or.App. at 488, 692 P.2d 700.

In this case, the physicians posit reputational and related economic risks from a judgment adverse to defendant in this case, that if imminent and probable would be more concrete and less speculative than the interests that the churches advanced in Samuels. The difficulty is that each of those risks is sharply disputed and difficult to accurately weigh in our calculus, in part, because they would not flow directly from the operation of such an adverse judgment, but would require additional action by defendant and third parties that may or may not occur, at least in the absence of an adjudication of negligence that is binding on the physicians.

In that regard, a decision of the Florida Court of Appeals provides a useful analogy. In Kissoon v. Araujo, 849 So.2d 426 (Fla. Dist.Ct.App.2003), the plaintiff had sued the defendant doctors for wrongful death. Id. at 428. In one of the defendants' expert's depositions, the expert alleged that Dr. Kissoon, who was not a named defendant, was actually the legal cause of the decedent's death. Id. Kissoon sought to intervene in the action, alleging that the comments "could potentially have a devastating effect on his reputation, subject him to professional investigation by the Florida Board of Medicine, and hinder the practice of medicine at the children's hospitals where he provides treatment." Id. at 429. The trial court denied the motion based on its conclusion that any effect on Kissoon would not be a direct result of the judgment. Id. at 428.

The Florida District Court of Appeals agreed, noting that any judgment in favor of the plaintiff would not automatically result in an investigation by the board or impose any liability on Kissoon. Id. at 429. The court explained that it was possible that a verdict for the plaintiff could be supported by a reason other than Kissoon's alleged negligence. The court also stated that, even if administrative proceedings were initiated against Kissoon, he would have a forum in which to address the allegations made against him, and the judgment in the wrongful death action would have no impact on that proceeding. Id. at 430 n. 3.

Admittedly, here, unlike in Kissoon, the physicians are named in the body of the amended complaint and, as framed by the pleadings, any judgment adverse to defendant would necessarily derive from a jury's determination that the physicians were negligent. However, here, as in Kissoon, it is far from clear that a judgment entered solely against defendant, even though based on malpractice allegations against the physicians, would automatically result in a report to either a federal or state review body that would have a direct adverse effect on the physicians' malpractice coverage or rates or their medical licenses or credentials.5 Moreover, as in Kissoon, it is not at all certain that, even if any such adverse action were initiated, the physicians would be denied an opportunity to fully defend themselves by asserting in the pertinent forum or proceeding that they were not, in fact, negligent. Accordingly, we cannot conclude, based on the record before us that the physicians' posited reputational, licensing, credentialing, and insurance interests would be immediately and directly affected by the operation of a judgment against defendant in this case.

We turn to the physicians' assertion that their indemnity obligations to defendant are a qualifying interest under ORCP 33 C. As discussed, the record shows that, under the terms of their employment agreements, the physicians owe defendant a duty to fully "cooperate in good faith, using their best efforts," to defend any claims made. Moreover, even in the absence of a contractual duty, the physicians would have a common-law duty to indemnify defendant if it is held vicariously liable, without negligence on its own part, for the physicians' negligence. Fireman's Fund American Ins. Companies v. Turner, 260 Or. 30, 34, 488 P.2d 429 (1971). Oregon courts have consistently held that such an interest qualifies as a lawful basis for permissive intervention.

In Samuels, for example, we said:

71 Or.App. at 489, 692 P.2d 700. See also Hanson v. Johnson, 143 Or. 532, 539, 23 P.2d 333 (1933) (surety had sufficient interest in litigation to be made a party). It follows that the indemnity obligations that the physicians would owe defendant if it were to suffer an adverse judgment in this action as a result of their negligence are sufficient interests to qualify for permissive intervention under ORCP 33 C.

The question remains whether the trial court failed to properly exercise its discretion by denying intervention in the circumstances of this case. In considering that question, we take into account both the prejudice or undue delay, if any, that intervention would cause with respect to the adjudication of rights between plaintiff and defendant, ORCP 33 C, and the prejudice that denial of intervention would cause to the physicians' interests. Samuels, 71 Or.App. at 489, 692 P.2d 700.

Insofar as the interests of the original parties to the action are concerned, intervention would visit no prejudice on defendant. In fact, for the reasons that plaintiff has identified, intervention would benefit defendant. However, the situation is different for plaintiff. First, with respect to delay, any delay in setting the case for trial obviously works (indeed, has worked) some prejudice against plaintiff's interest in an expeditious resolution of her claim. However, we cannot say, given the procedural history of this case, that the physicians unduly delayed filing their motions to intervene. Before plaintiff decided to amend her complaint to include specifications of negligence against Robinson, Anderson's counsel was managing the defense of the case based on a tender of defense, and there was no reason for either physician to seek intervention. It was only when the complaint was amended, in mid-December 2008, that Robinson's alleged negligence was implicated, and it no longer made practical sense for one of the physicians' attorneys to manage the defense of the case. The motions to intervene were filed within 60 days thereafter. We are not prepared to say that the physicians unduly delayed the proceedings in that regard. Moreover, the record shows that, if the motions to intervene had been allowed, any additional delay owing to the physicians' joinder would have been relatively brief. Accordingly, under the circumstances, intervention would not have occasioned undue delay in the adjudication of plaintiff's claim.

That said, there is more to prejudice than time. Plaintiff, as do all plaintiffs in civil actions, had a presumptive right to choose her opponents in this action. Of course, defendant had a limited right to inject new claims in the case by filing a third-party complaint for indemnity against either or both of the physicians within 90 days after service of the original summons and complaint. See ORCP 22 C. However, as discussed, defendant deliberately eschewed that option for its own reasons, not the least of which was to avoid the appearance of being at odds with the physicians. Under those circumstances, if intervention were allowed, there would be no claims in this case that would either adjudicate the physicians' liability, if any, to plaintiff or their liability toward defendant for indemnity.

In short, rather than actually resolve the contingent liabilities about which defendant and the physicians express concern, the physicians' presence as intervenors aligned with defendant in resisting plaintiff's claims would risk confusing the jury with such concerns, even though those contingent liabilities would not be adjudicated in this action. In addition, plaintiff, having chosen a single opponent with whom to duel, would be beset by three separate opponents asserting the same (or different) defenses, presenting separate arguments, examining and cross-examining the same and additional witnesses and, in general, complicating the process of the case, both before and during trial. To ignore that kind of prejudice would overlook the prerogative by which plaintiffs routinely evaluate and assume the risks and benefits of naming too many or too few defendants at the outset of an action. In sum, we conclude that the prejudice that intervention would cause to plaintiff's interests supports the trial court's decision to deny intervention. The question remains whether any countervailing prejudice that denying intervention would cause to the physicians' interests is sufficient to conclude that the trial court improperly exercised its discretion by doing so.

We have already answered that question in part. It is apparent from the absence of a third-party complaint in this case that intervention would not accomplish the physicians' goal of efficiently resolving their respective contingent liabilities toward defendant. Nor would it permit the adjudication of cross-claims between them because there are no claims in this action that could result in a judgment against either of them. See ORCP 22 B(1) (limiting qualifying cross-claims to defendants "between whom a separate judgment might be had in the action"). Accordingly, the issue of prejudice to the physicians reduces to one straightforward query: are their interests sufficiently aligned with defendant's interests so as to avoid the risk of unfair prejudice to the physicians' interests?

Again, Samuels provides a useful perspective. In that case, we concluded that,

71 Or.App. at 490-91, 692 P.2d 700. Our conclusion in Samuels that the trial court had not erred in denying intervention hinged, in part, on our conclusion that, under controlling California law, the churches were entitled to control the litigation if Hubbard were to appear and defend and, thus, their preferred defenses could be asserted. That circumstance does not exist in this case. However, two other significant factors weigh against intervention in this case. First, here, unlike in Samuels, the named defendant has appeared and has vigorously defended against plaintiff's claims. Defendant here can prevail only if a jury finds that neither of the physicians was negligent in any of the ways alleged in the amended complaint. By all accounts, defendant must defend the case accordingly. Thus, unlike in Samuels, defendant here is highly motivated to avoid the entry of a judgment against it based on the physicians' alleged negligence.

Second, even though defendant's counsel expressed appropriate concern about the complications posed by the differing deposition testimony of the physicians in this case, that perceived conflict logically should have little, if anything, to do with the defense of this case. Both physicians testified that, regardless of how it was reached, the decision to send the decedent home from the emergency room was not negligent. Whether it was a joint decision or one that Robinson believed ultimately belonged to Anderson, neither physician believed it to be wrong. Plaintiff, who has alleged that the physicians acted in concert, has no interest in exploiting differences between the physicians' testimony about who made the discharge decision. Nor, for that matter, should the physicians or defendant logically wish to emphasize that difference in this case. And, in the end, because there are no claims in this case that would permit the adjudication of liability between the physicians, this case furnishes no opportunity to conclusively determine whether the discharge decision was joint or Anderson's alone. It follows that, even if not perfectly aligned, the interests of defendant and the physicians in defeating plaintiff's claims are sufficiently similar to militate against the risk of unfair prejudice to the physicians' interests in this action.

To summarize: the physicians' indemnity obligations toward defendant are sufficient legal interests to qualify for permissive intervention under ORCP 33 C. However, the trial court nevertheless properly exercised its discretion to deny intervention, because (1) the prejudice to plaintiff's interests that would result from the physicians' intervention is significant, whereas (2) denial of intervention would not unfairly prejudice the physicians, because (a) their intervention would not result in the final adjudication of claims between and among the physicians and the original parties and (b) even though defendant does not represent the physicians' interests in this action, defendant is highly motivated to vigorously defend against plaintiff's claims in order to avoid the entry of a judgment against it based on the physicians' alleged negligence. That practical alignment of interests militates against the risk of unfair prejudice to the physicians' interests in this action.

Affirmed.