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Smith v. Providence Health & Services-Oregon

Court of Appeals of Oregon

April 8, 2015

Joseph L. SMITH, Plaintiff-Appellant,
v.
PROVIDENCE HEALTH & SERVICES - OREGON, dba Providence Hood River Memorial Hospital, dba Providence Medical Group; Linda L. Desitter, MD; Michael R. Harris, MD; Hood River Emergency Physicians, LLC; and Hood River Medical Group, PC; Defendants-Respondents, and PROVIDENCE MEDICAL GROUP, fka Hood River Medical Group, PC; and Hood River Medical Group, PC, Defendants

Argued and Submitted: December 4, 2014.

Multnomah County Circuit Court. 130202067. Nan G. Waller, Judge..

Stephen C. Hendricks argued the cause for appellant. With him on the briefs was Joseph L. Smith and Hendricks Law Firm, P.C.

George Pitcher argued the cause for respondent Providence Health & Services--Oregon. On the joint brief were Lindsey H. Hughes, Hillary Taylor, and Keating Jones Hughes, P.C.; George Pitcher and Williams Kastner; Jay Beattie and Lindsay Hart LLP.

Jay Beattie argued the cause for respondents Linda L. Desitter, MD, and Hood River Emergency Physicians. On the joint brief were Lindsey H. Hughes, Hillary Taylor, and Keating Jones Hughes, P.C.; George Pitcher and Williams Kastner; Jay Beattie and Lindsay Hart LLP.

Hillary A. Taylor argued the cause for respondents Michael R. Harris, MD, and Hood River Medical Group, P.C. On the joint brief were Lindsey H. Hughes, Hillary Taylor, and Keating Jones Hughes, P.C.; George Pitcher and Williams Kastner; Jay Beattie and Lindsay Hart LLP.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 821

[270 Or.App. 327] DEVORE, J.

This case was filed after plaintiff suffered a stroke and permanent brain damage. He sought relief from defendants, Providence Hood River Memorial Hospital, Linda Desitter, M.D., Michael Harris, M.D., and Hood River Emergency Physicians, alleging medical

Page 822

negligence based upon a " loss of chance" theory of recovery. Defendants moved to dismiss on the ground tat plaintiff had failed to state a claim, because " loss of chance" is not a cognizable claim in Oregon. ORCP 21 A(8). The trial court granted the motion. Plaintiff appeals and seeks reversal of the judgment dismissing his complaint. " In reviewing a ruling allowing a motion to dismiss for failure to state a claim, an appellate court assumes that all well-pleaded facts are true and gives the party opposing the motion the benefit of all reasonable inferences that may be drawn from those facts." Lowe v. Philip Morris USA, Inc., 344 Or. 403, 407 n 1, 183 P.3d 181 (2008). We affirm.

We take the facts from plaintiff's second amended complaint. Plaintiff, a 49-year-old man, arrived at the Providence Hood River Memorial Hospital (" Providence" ) on April 8, within two hours of the onset of early symptoms that he believed might indicate a stroke. A CT scan did not show bleeding in plaintiff's brain. Plaintiff's attending emergency room physician, Desitter, did not diagnose plaintiff with a stroke or instruct plaintiff to take aspirin. She concluded that his symptoms " were caused by taking a sleep aid hours before the onset of symptoms, told him he needed to have his eyes examined," and discharged him. The following night, plaintiff returned to Providence with increased head pain and visual problems. Desitter was the attending physician again assigned to plaintiff. She diagnosed him with a headache and gave him a prescription for Vicodin, but she did not advise him to take aspirin and did not order an MRI.

On April 11, plaintiff attended a follow-up appointment with another physician, Harris. Plaintiff did not report any additional symptoms at that time. Harris ordered an MRI for April 15, but he did not advise plaintiff to take aspirin. At some time, plaintiff's condition worsened. When the MRI was ultimately performed, it revealed " substantial [270 Or.App. 328] brain damage from a stroke." Plaintiff exhibited signs of stroke, including " significantly ...


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