Smith v. Providence Health & Services

Oregon Supreme Court · 2017 · Torts

TortsMedical negligenceLoss of chancemedical malpracticeloss of chancecausationinjurypleading

Facts

Plaintiff went to defendants' emergency room less than two hours after developing visual difficulties, confusion, slurred speech, and headache, fearing he was having a stroke. Although a CT scan showed no bleeding and made him a candidate for TPA treatment, the emergency physician did not perform complete physical or thorough neurological examinations, did not order an MRI, and did not advise aspirin; plaintiff was discharged and later returned with worsening symptoms, but was again not thoroughly evaluated or treated. At a follow-up visit, another physician ordered an MRI but not on an expedited basis and also did not advise aspirin. By the end of the week, an MRI showed substantial permanent brain damage from a stroke, and plaintiff alleged that defendants' negligence caused him, on a more probable than not basis, to lose a 33 percent chance for treatment that would have produced a much better outcome with reduced or no stroke symptoms.

Issue

Whether Oregon common law permits a plaintiff who has suffered an adverse medical outcome resulting in physical harm to state a medical negligence claim by alleging that the defendant negligently caused the loss of the plaintiff's chance at recovery. More specifically, the question was whether loss of a chance of a better medical outcome can itself be a cognizable injury in a common-law medical malpractice action.

Rule

In Oregon, a loss of a substantial chance of a better medical outcome can be a cognizable injury in a common-law medical malpractice claim. When loss of chance is treated as the injury, the plaintiff must still prove by a preponderance of the evidence that the defendant's negligence more likely than not caused the loss of that chance, and the plaintiff must plead with specificity the percentage and quality of the lost chance based on expert and scientific evidence meeting the standard of reasonable medical probability. The plaintiff also must have suffered the adverse medical outcome that provides the foundation for damages.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Nora Bennett went to Rivergate Medical Center with classic symptoms of a rapidly progressing bacterial infection. Dr. Alan Mercer negligently failed to order indicated blood cultures and antibiotics, and Nora later suffered permanent kidney damage. Her complaint alleges that timely treatment would have given her a 35 percent chance of avoiding that damage, based on expert review of medical studies.

Under Oregon common law as stated by the majority, has Nora stated a cognizable medical malpractice injury?

Explanation. The majority recognized a limited loss-of-chance theory in common-law medical malpractice. The injury may be the lost chance of a better medical outcome, so long as the plaintiff also suffered the adverse medical outcome providing the basis for damages. Oregon did not require proof that the ultimate physical harm itself was more likely than not caused by the negligence when the alleged injury is the lost chance.