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Sloan v. Providence Health System-Oregon

Supreme Court of Oregon

April 4, 2019

Dennis L. SLOAN, Personal Representative, on behalf of the Estate of Jack L. Sloan, Respondent on Review,
v.
PROVIDENCE HEALTH SYSTEM-OREGON, et al., Defendants, and APOGEE MEDICAL GROUP, P.C., a corporation, Petitioner on Review.

          Argued and submitted November 13, 2017.

          On review from the Court of Appeals. [*] No. CC 094049L2, CA A152989.

          Michael T. Stone, Brisbee & Stockton LLC, Hillsboro, argued the cause and fled the briefs for petitioner on review.

          Kathryn H. Clarke, Portland, argued the cause and fled the brief for respondent on review. Also on the brief was J. William Savage.

          Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter PC, Portland, fled the brief for amicus curiae Oregon Trial Lawyers Association.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         [365 Or.App. 636] The decision of the Court of Appeals is affirmed. The judgment of the circuit court for defendant Apogee is reversed and remanded; the circuit court judgment is otherwise affirmed.

         Case Summary: Plaintiff alleged that defendant negligently failed to diagnose and treat decedent's rib fractures and internal bleeding before discharging him to a skilled nursing facility. Defendant denied that decedent had fractured ribs and internal bleeding while first under defendant's care and argued that those injuries, which ultimately lead to decedent's death, occurred while he was at the skilled nursing facility. As a result of defendant's theory, plaintiff asked the trial court for a jury instruction regarding a northeast's liability for the subsequent conduct of a third party. The trial court denied that request. The jury concluded that defendant acted negligently but did not cause decedent's death. The Court of Appeals reversed after concluding that the trial court erred in refusing to give the requested instruction. Held: (1) the Court of Appeals did not err in applying foreseeability principles because reasonable foreseeability limits liability in medical negligence cases; (2) plaintiff's requested jury instruction regarding a northeaster's liability for the subsequent conduct of another was a correct statement of the law because a northeaster is liable for the reasonably foreseeable consequences of his conduct, including reasonably foreseeable conduct and injuries by subsequent medical providers; and (3) the trial court's failure to give plaintiff's requested instruction requires reversal because, given how the case was litigated and the instructions the jury received, the jury could have based its verdict on an incorrect understanding of the relevant law without the requested instruction.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court for defendant Apogee is reversed and remanded; the circuit court judgment is otherwise affirmed.

          [364 Or.App. 637] DUNCAN, J.

         In this medical negligence action, plaintiff appealed, asserting that the trial court erred in refusing to give his requested jury instruction concerning a tortfeasor's liability for the subsequent conduct of another. The Court of Appeals agreed and reversed the trial court's judgment in part and remanded the case to the trial court for a new trial. Sloan v. Providence Health System-Oregon, 282 Or.App. 301, 386 P.3d 203 (2016). On defendant's petition, we allowed review, and, for the reasons explained below, we affirm the Court of Appeals decision, reverse the trial court's judgment in part, and remand the case for a new trial.

         I. HISTORICAL AND PROCEDURAL FACTS

         Acting as the personal representative of his father's estate, plaintiff brought this medical negligence action against defendants Providence and Apogee. Plaintiff asserted that defendants were negligent in their care of plaintiff's father, Sloan, because they failed to diagnose and treat Sloan's rib fractures and internal bleeding. On November 3, Sloan, who was 85 years old, came to Providence's hospital after falling at home and was initially treated by Providence's emergency department personnel. He was later admitted to the hospital, where he was treated by Apogee's doctors. On November 7, Apogee's doctors discharged Sloan to a skilled nursing facility, Three Fountains. On November 17, Sloan's condition worsened significantly. His blood oxygen saturation levels dropped and his breathing became rapid and shallow. A nurse practitioner at Three Fountains believed that something was happening with Sloan's lungs and suspected he might have pneumonia. Sloan's condition continued to worsen over the next two days, and, on November 19, Three Fountains returned Sloan to the hospital. At the hospital, Sloan was found to have multiple displaced rib fractures and bleeding in his right chest cavity, which had caused his right lung to collapse. Later that same day, Sloan died of respiratory failure due to the bleeding in his chest cavity and the collapse of his lung.

         Thereafter, plaintiff brought this medical negligence action against defendants. At trial, plaintiff's theory was that, when Sloan first came to the hospital, he had [364 Or. 638] fractured ribs that were causing bleeding into his chest cavity and that Providence and Apogee's doctors failed to diagnose and treat those problems, which continued and eventually led to Sloan's death. Plaintiff did not make any claims against Three Fountains.

         Providence and Apogee did not dispute the medical cause of Sloan's death, but they did dispute that Sloan had displaced fractured ribs and internal bleeding during his first stay at the hospital. They suggested that "something happened" while Sloan was at Three Fountains that caused Sloan's death. Providence and Apogee did not identity a particular cause and did not assert that Three Fountains was negligent. But they presented evidence suggesting that Sloan's ribs could have fractured-or, if any of them were already fractured, the fractures could have been displaced-by Sloan's own movements while at Three Fountains or by actions or omissions by Three Fountains. In support of that theory, Providence and Apogee presented testimony from medical experts. One expert testified that rib fractures can be displaced "just in the course of breathing, rolling around, getting in and out of bed." Another suggested that Sloan's rib fractures could have been displaced during physical therapy at Three Fountains. Providence and Apogee also presented evidence that, although Three Fountains knew that Sloan was a high fall risk, Sloan was not always assisted when walking. In addition, the nurse practitioner from Three Fountains testified that no one at Three Fountains was aware that Sloan had fractured ribs, but that she would want to know if a patient had fractured ribs because that patient would be at risk of bleeding into his chest cavity or puncturing a lung.

         Because Providence and Apogee's theory raised the possibility that Sloan's death was caused by something that happened at Three Fountains, plaintiff requested a jury instruction regarding a northeaster's liability for the subsequent conduct of a third party (the Liability for Subsequent Conduct Instruction). Similar to Uniform Civil Jury Instruction 20.07, plaintiff's requested instruction stated:

         "If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant [364 Or.App. 639] would also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable."[1]

         Plaintiff argued that, because defendants were implying that Three Fountains caused Sloan's death, the jury needed to know that, if Providence and Apogee were negligent, they could be liable for Sloan's death, even if Three Fountains' subsequent conduct contributed to the death.

         Defendants objected to the instruction. Defense counsel read the instruction as applicable only if defendants were asserting that Three Fountains was negligent, and he asserted that defendants were "not contending that anybody dropped the ball, necessarily." Defense counsel commented, "I think that what we have is what historically has been thought of as [an] intervening superseding cause. And if that's the kind of instruction that needs to be given then so be it."

         The trial court refused to give plaintiff's Liability for Subsequent Conduct Instruction.[2] Plaintiff expressly excepted to the trial court's refusal to give the instruction, asserting that he was entitled to it "because of the suggestions by [defense counsel] and argument that something that happened over at the Three Fountains home is responsible for the death of Mr. Sloan as opposed to the acts of negligence that are set forth in Plaintiffs * * * complaint."

          [364 Or.App. 640] As relevant to the issues on review, the trial court instructed the jury on negligence, reasonable foreseeability, causation, multiple causation, and two or more possible causes, stating:

"The law assumes that all persons have obeyed the law and have been free from negligence.
"To recover, the plaintiff must prove two things by a preponderance of the evidence: (1) that the defendants were negligent in at least one of the ways claimed in the plaintiffs complaint; and (2) that the defendants' negligence was a cause of damage to the plaintiff.
"A person is liable only for the reasonably foreseeable consequences of his or her actions. There are two things that must be foreseeable. First, the plaintiff must be within the general class of persons that one reasonably would anticipate might be threatened by the defendant's conduct. Second, the harm suffered must be within the general class of harms that one reasonably would anticipate might result from the defendant's conduct.
"A cause is denned as an act or omission that is a substantial factor in bringing about the harm. A substantial factor is an important or material factor and not one that is insignificant.
"Many factors or things may operate either independently or together to cause harm. In such a case, each may be a cause of the harm even though the others by themselves would have been sufficient to cause the same harm. If you find that the defendant's act or omission was a substantial factor in causing the harm to the plaintiff, you may find that the defendant's conduct caused the harm even though it was not the only cause.
"Where there are two or more possible causes for an injury for one or more of which a defendant is not responsible, there can be no recovery unless it is shown that as between the causes in question, the cause for which ...

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