Sloan v. Providence Health System-Oregon

437 P.3d 1097, 364 Or. 635
CourtOregon Supreme Court
DecidedApril 4, 2019
DocketCC 094049L2 (SC S064748)
StatusPublished
Cited by24 cases

This text of 437 P.3d 1097 (Sloan v. Providence Health System-Oregon) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sloan v. Providence Health System-Oregon, 437 P.3d 1097, 364 Or. 635 (Or. 2019).

Opinion

DUNCAN, J.

**637In 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 **638fractured 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 *1100or 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 tortfeasor'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 **639would 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 Plaintiff's *** complaint."

**640As 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 plaintiff's complaint; and (2) that the defendants' negligence was a cause of damage to the plaintiff.
"* * * * *
*1101"A person is liable only for the reasonably foreseeable consequences of his or her actions.

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Cite This Page — Counsel Stack

Bluebook (online)
437 P.3d 1097, 364 Or. 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sloan-v-providence-health-system-oregon-or-2019.