Smith v. Providence Health & Services - Oregon

347 P.3d 820, 270 Or. App. 325, 2015 Ore. App. LEXIS 427
CourtCourt of Appeals of Oregon
DecidedApril 8, 2015
Docket130202067; A155336
StatusPublished
Cited by2 cases

This text of 347 P.3d 820 (Smith v. Providence Health & Services - Oregon) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Providence Health & Services - Oregon, 347 P.3d 820, 270 Or. App. 325, 2015 Ore. App. LEXIS 427 (Or. Ct. App. 2015).

Opinion

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 negligence based upon a “loss of chance” theory of recovery. Defendants moved to dismiss on the ground that 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 P3d 181 (2008). We affirm.

We take the facts from plaintiffs 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 plaintiffs brain. Plaintiffs 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, plaintiffs condition worsened. When the MRI was ultimately performed, it revealed “substantial [328]*328brain damage from a stroke.” Plaintiff exhibited signs of stroke, including “significantly slurred speech, [and] significant cognitive impairments [.]” He continues to suffer permanent damage.

Plaintiffs complaint sought relief for “injuries * * * caused or substantially contributed to by the negligence of defendants * * *.” As to Providence and Desitter, he alleged negligence:

“a. In failing to take a full and complete history from both [plaintiff] and other people who knew his condition;
“b. In failing to perform a thorough physical and neurological examination;
“c. In failing to order an MRI;
“d. In failing to request a neurological consult; or
“e. In failing to start the patient on aspirin.”

As to Providence and Harris, plaintiff alleged negligence as follows:

“a. In failing to order the MRI stat; or
“b. In failing to start the patient on aspirin[,]”1

Plaintiff stated that as a result of that conduct, “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.”

Defendants moved to dismiss for failure to state a claim. ORCP 21 A(8). Defendants argued that plaintiffs action relied on a “loss of chance” theory that has been rejected in Oregon.2 They contended that the harm plaintiff suffered was a result of his stroke, that there was no causal link between their conduct and the stroke, and that plaintiff did not allege that he would not have suffered the [329]*329harm regardless of their inaction. Plaintiff acknowledged that he asserted a “loss of chance” case, but contended that, if he had been properly diagnosed and treated, “he would have had an opportunity for a much better outcome.” The trial court granted defendants’ motion, “on the grounds that Oregon does not allow recovery for loss of chancel.]”’

Plaintiff appeals, arguing that loss of chance is a cognizable theory of recovery in Oregon under common law. Defendants respond that the loss of chance theory of recovery was rejected by the Oregon Supreme Court in a wrongful death case, Joshi v. Providence Health System, 342 Or 152, 149 P3d 1164 (2006). Plaintiff insists that that decision is limited to wrongful death claims, which exist by reason of statute rather than common law. We begin by acknowledging that the loss of chance theory has been considered only in wrongful death actions, and we must address the broader question here.3 As we will explain, we conclude that loss of chance is not a cognizable theory of relief at common law.

The general standard for professional liability is well established. We have observed that

“ [professional negligence is the failure to meet the standard of care used in the reasonable practice of the profession in the community. The plaintiff must plead and prove (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) a causal link between the breach and the harm. When a physician-patient relationship exists, the doctor has a duty to exercise that degree of care, knowledge and skill ordinarily possessed and exercised by the average provider of that type of medical service.”

Son v. Ashland Community Healthcare Services, 239 Or App 495, 506, 244 P3d 835 (2010), rev den, 350 Or 297 (2011) [330]*330(internal quotation marks omitted). The causal link “must have the quality of reasonable probability!.] ” Sims v. Dixon, 224 Or 45, 48, 355 P2d 478 (1960). Certainty of causation is not required; however, the plaintiff must prove that the “defendant’s conduct was the likely cause” of the plaintiffs injuries. Marcum v. Adventist Health System/West, 345 Or 237, 248 n 10, 193 P3d 1 (2008) (emphasis in original).

In Joshi, the plaintiff brought an action under Oregon’s wrongful death statute, ORS 30.020, alleging that her husband, the decedent, died as a result of the defendants’ failure to diagnose and treat her husband’s stroke. 342 Or at 155. The decedent arrived at St. Vincent Hospital complaining of a severe headache, blurry vision, and dizziness. Id. After completing a few tests, he was discharged with a prescription for pain medication. The decedent’s symptoms persisted, and a few days later he called a physician who “attributed * * * symptoms to the pain medication, and recommended that decedent replace it with an over-the-counter medication.” Id. The next day, the decedent returned to the hospital, at which point he was diagnosed as having had a stroke. He died despite subsequent treatment. Id.

On review, the court considered “whether expert testimony that defendants’ conduct probably increased the chance of decedent’s death creates a jury question as to causation.” Id. at 157.

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Related

Smith v. Providence Health & Services - Oregon
393 P.3d 1106 (Oregon Supreme Court, 2017)

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Bluebook (online)
347 P.3d 820, 270 Or. App. 325, 2015 Ore. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-providence-health-services-oregon-orctapp-2015.