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Smith v. Providence Health & Services - Oregon

Supreme Court of Oregon

May 11, 2017

Joseph L. SMITH, Petitioner on Review,
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; Respondents on Review, and PROVIDENCE MEDICAL GROUP, fka Hood River Medical Group, PC; and Hood River Medical Group, PC, Defendants.

          Argued and submitted March 4, 2016, at Willamette University College of Law, Salem, Oregon.

         On review from the Court of Appeals No. CC 130202067, CA A155336.[*]

          Stephen C. Hendricks, Hendricks Law Firm, PC, Portland, argued the cause and fled the brief for petitioner on review.

          George S. Pitcher, Lewis Brisbois Bisgaard & Smith LLP, Portland, arg ued the cause and fled the brief for respondent on review Providence Health & Services - Oregon. Also on the brief was Rachel A. Robinson.

          Lindsey H. Hughes, Keating Jones Hughes, PC, Portland, argued the cause and fled the brief for respondents on review Michael R. Harris, MD, and Hood River Medical Group, PC. Also on the brief was Hillary A. Taylor.

          Jay Beattie, Lindsay Hart, LLP, Portland, argued the cause and fled the brief for respondents on review Linda L. Desitter, MD, and Hood River Emergency Physicians.

          Roy Pulvers, Holland & Knight LLP, Portland, fled the brief for amici curiae Oregon Medical Association and American Medical Association.

          Travis Eiva, Eugene, fled the brief for amicus curiae Oregon Trial Lawyers Association. Also on the brief was Dan Bartz.

          Michael T. Stone, Brisbee & Stockton LLC, Hillsboro, fled the brief for amicus curiae Oregon Association of Defense Counsel.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, Nakamoto, and Flynn, Justices. [**]

         Case Summary:

         Plaintiff went to the emergency room of defendant hospital shortly after experiencing symptoms of a stroke. The emergency room physician failed to correctly diagnose plaintiff's symptoms and discharged plaintiff. Plaintiff returned again the following day with significantly increased stroke symptoms, and the physician again failed to correctly diagnose his condition. Plaintiff's condition was not correctly diagnosed until the following week, at which point he had suffered substantial brain damage. Plaintiff sued the hospital and physicians involved, alleging a loss-of-chance medical negligence claim. The theory of his claim was that, as a result of defendants' negligence, plaintiff had lost a chance for treatment that, 33 percent of the time, provides a stroke victim with a much better medical outcome, with few or no lasting symptoms. The trial court granted defendants' motion to dismiss on the ground that Oregon common law did not permit recovery based on a loss-of-chance theory, and the Court of Appeals affirmed. Held: As a matter of first impression, Oregon common law does not preclude the loss-of-chance theory of recovery in medical malpractice cases. The theory, as advanced by plaintiff, does not require a relaxation of causation standards. Rather, loss of chance of a better medical outcome is, in itself, a type of harm.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

          NAKAMOTO, J.

         After suffering permanent brain damage from a stroke, plaintiff Joseph Smith brought this medical negligence action, alleging that, because doctors had not taken proper steps to follow up on his complaints of stroke symptoms, he lost a chance for treatment that, in one-third of cases, provides a patient with no or reduced complications following the stroke. Reviewing the complaint on its face, the trial court agreed with defendants that plaintiff had failed to state a claim under Oregon law. The court entered a judgment dismissing the complaint with prejudice, which the Court of Appeals affirmed. Smith v. Providence Health & Services - Oregon. 270 Or.App. 325, 347 P.3d 820 (2015). On review, the question presented is whether Oregon law permits a plaintiff who has suffered an adverse medical outcome resulting in physical harm to state a common-law medical negligence claim by alleging that the defendant negligently caused a loss of his or her chance at recovery. As explained below, we conclude, as a matter of first impression, that a medical negligence claim based on a loss-of-chance theory of injury in the circumstances presented is cognizable under Oregon common law. Accordingly, we reverse and remand for further proceedings.


         Because the trial court dismissed the action at the pleading stage, we describe the facts by assuming the truth of facts that plaintiff alleged in his complaint and by giving him the benefit of reasonable inferences from those facts. Lowe v. Philip Morris USA. Inc.. 344 Or 403, 407 n 1, 183 P.3d 181 (2008). On a Friday afternoon in 2011, plaintiff, then 49 years old, went to the emergency room at Providence Hood River Memorial Hospital, which defendant Providence Health & Services - Oregon operated. He arrived in the emergency room less than two hours after he began experiencing visual difficulties, confusion, slurred speech, and headache. Plaintiff was worried that he might be having a stroke.

         Defendant Dessiter, a physician affiliated with defendant Hood River Emergency Physicians, LLC, attended plaintiff in the emergency room. Dessiter did not perform a complete physical examination or thorough neurological examination of plaintiff. Plaintiff underwent a CT scan, which showed no bleeding in his brain, making him a candidate for "TPA treatment of a stroke."[1] A radiologist recommended that, if symptoms persisted, an MRI should be considered. Dessiter concluded that plaintiff's symptoms were caused by taking a sleep aid, told him he needed to have his eyes examined, and discharged him. She did not advise him to take aspirin.

         On Saturday night, when Dessiter was again working, plaintiff returned to the Providence emergency room. Plaintiff reported that the pain in his head had significantly increased and he was still having visual problems. Again, Dessiter did not perform a complete physical examination and did not perform a thorough neurological examination. She diagnosed plaintiff with a mild headache and visual disturbance and gave him a prescription for Vicodin. She again advised him to see an eye doctor. She did not advise plaintiff to take aspirin.

         On Monday, plaintiff attended a follow-up appointment with defendant Harris, a family practice physician affiliated with defendant Hood River Medical Group, PC. Harris ordered an MRI, but not on an expedited basis. He did not advise plaintiff to take aspirin.

         When an MRI was done at the end of the week, it showed that plaintiff had suffered substantial brain damage from a stroke. Plaintiffs stroke-related injuries are permanent. Among other things, he now has slurred speech, limitations on his ability to perform activities of daily living, and cognitive impairments that prevent him from working.

         Plaintiff sued the doctors who had attended him, their respective medical groups, and Providence for medical negligence, alleging a loss-of-chance negligence theory. In his second amended complaint, plaintiff alleged that Providence and Dessiter were negligent in failing to conduct thorough physical and neurological examinations, to order an MRI, to start plaintiff on aspirin, and to take various other actions. Plaintiff alleged that Providence and Harris were negligent in failing to order an MRI on an expedited basis and to start plaintiff on aspirin. Plaintiff then alleged that, "[a] s a result of the negligence of [Providence, Dessiter, and Harris], on a more probable than not basis, [plaintiff] lost a chance for treatment which, 33 percent of the time, provides a much better outcome, with reduced or no stroke symptoms."[2] Plaintiff further alleged that, "[a]s a result of defendants' negligence and his injuries, " he "lost his ability to work" and "has serious and permanent injuries." He requested damages "for lost wages or impairment of earning capacity" and "non-economic damages."

         In a professional negligence claim, a plaintiff must allege and prove the following: "(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of duty and the harm." Zehr v. Haugen, 318 Or 647, 653-54, 871 P.2d 1006 (1994). Ultimately, the plaintiff must prove causation by a "reasonable probability." Sims v. Dixon, 224 Or 45, 48, 355 P.2d 478 (1960).

         Dessiter and her medical group, Harris and his medical group, and Providence filed motions to dismiss plaintiffs complaint under ORCP 21 A(8). All defendants argued that plaintiff had failed to allege ultimate facts sufficient to constitute a claim on two grounds. First, they argued, plaintiff had not alleged a recognized harm because Oregon law does not permit recovery for loss of chance. Defendants asserted that this court had rejected the loss-of-chance theory in Joshi v. Providence Health System, 342 Or 152, 149 P.3d 1164 (2006), a statutory wrongful death case in which the personal representative of a patient alleged that health care providers had failed to diagnose the patient's stroke, leading to his death. Id. at 155. Second, defendants argued that plaintiff's negligence theory, if recognized in Oregon, would subvert the requirement that a plaintiff in a medical malpractice case must plead and prove a causal connection between the defendant's breach of duty and the plaintiff's injuries.

         The trial court granted defendants' motions to dismiss but allowed plaintiff 10 days in which to replead the complaint. When plaintiff failed to amend his complaint, the trial court entered a general judgment dismissing the action with prejudice.

         Before the Court of Appeals, the parties again disputed whether loss of chance had been rejected or recognized as a negligence theory in Oregon and whether plaintiff's theory conflicted with pleading requirements for the element of causation in a professional negligence claim. Citing Harris v. Kissling, 80 Or.App. 5, 721 P.2d 838 (1986), and distinguishing Joshi, plaintiff argued that Oregon recognizes loss of chance "in medical negligence actions for injuries" and that many other states allow claims for loss of chance.

         The Court of Appeals resolved plaintiff's appeal based on both this court's decision in Joshi and plaintiff's allegations concerning causation. In a footnote, the Court of Appeals declined plaintiff's invitation to conclude that the loss of a chance for an often-effective treatment and recovery is the cognizable harm caused by a negligent failure to act. Smith, 224 Or.App. at 329 & n 3. Instead, the court viewed plaintiff's injury as his stroke-related brain damage and determined that the causation requirement for the wrongful death statute in Joshi was the same requirement demanded by the common law for causation in a medical negligence claim. Smith, 270 Or.App. at 331-32. The court concluded that plaintiff's allegation that he lost a 33 percent chance for a better outcome was insufficient to allege that "there is a reasonable probability that defendants' alleged negligent omissions resulted in his injury." Id. at 332. Accordingly, the court affirmed. Id.

         Plaintiff sought review, arguing, in part, that the Court of Appeals erroneously had rejected loss of chance as a separate compensable injury, which then led the court to conduct an off-kilter analysis of causation. We granted review to decide whether Oregon law permits plaintiff, who has suffered physical harm, to state a common-law medical negligence claim by alleging that defendants negligently caused the loss of his 33 percent chance at recovery from his stroke.

         II. ANALYSIS

         A. Preservation

         Before reaching the parties' substantive arguments, we address defendants' contention that plaintiff failed to adequately preserve his argument that the loss of a 50 percent or lesser chance for medical recovery is a discrete, compensable harm. Defendants' arguments, which have mor-phed over time, are unavailing.

         Defendants first raised concerns about preservation before this court, when opposing plaintiff's petition for review. At that point, defendants acknowledged that, in the trial court, plaintiff had argued in favor of recognizing loss of chance as an injury. Even so, defendants contended, plaintiffs reference to Dickhoff ex rel Dickhoff v. Green, 836 N.W.2d 321, 329-30 (Minn 2013) (approving the loss-of-chance theory), was too "skimpy and opaque."

         Defendants since appear to have pushed that argument to the sidelines, and rightly so. The question whether an argument has been preserved "inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the [preservation] rule have been sufficiently served." State v. Parkins, 346 Or 333, 341, 211 P.3d 262 (2009). This court has also explained that two major policies underlie the rule of preservation: judicial efficiency and fairness. Peeples v. Lampert, 345 Or 209, 219-20, 191 P.3d 637 (2008). Those preservation policies were served in this case: First, in his complaint, plaintiff expressly alleged that he lost his chance for recovery. Second, in opposing defendants' Rule 21 motions, plaintiff argued (among other things) that "the loss of his chance for a better outcome is absolutely an injury to his person" and asked the trial court "to allow him to present that harm to a jury"

         More recently, in their brief before this court, defendants assert that the issue whether the loss of the chance for recovery is a compensable injury was not before the trial court, because plaintiff had failed to clearly allege a compensable injury. As defendants view it, the complaint had to, but did not, contain the proper allegation of damages, namely, damages for emotional or psychic injury experienced because of losing a chance of recovery. Instead, defendants assert, the only claim plaintiff presented was one for "physical injury damages." Although their argument sounds like a challenge to the ...

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