In its opinion filed on May 11, 2017, the Supreme Court of the State of Oregon (“Oregon Supreme Court”) held, 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 (i.e., an injured Plaintiff alleging common-law Medical Malpractice may recover for loss of a chance at a better medical outcome).

In the case it was deciding, the 49-year-old plaintiff went to the emergency room of the defendant Oregon hospital, complaining of visual difficulties, confusion, slurred speech, and headache that he began experiencing less than two hours before his arrival at the emergency room. The plaintiff feared that he may be having a stroke.

The doctor in the defendant hospital’s emergency room failed to perform a complete physical examination or thorough neurological examination of the plaintiff. The plaintiff had a CT scan of his brain, which showed no bleeding in his brain, making him a candidate for TPA treatment of a stroke. A radiologist recommended that, if symptoms persisted, an MRI should be considered. The doctor concluded that the plaintiff’s symptoms were caused by taking a sleep aid, told him he needed to have his eyes examined, and discharged him. The doctor did not advise the plaintiff to take aspirin.

The following night, the plaintiff returned to the defendant hospital’s emergency room, complaining that the pain in his head had significantly increased and he was still having visual problems. He was seen by the same doctor. The doctor once again failed to perform a complete physical examination and failed to perform a thorough neurological examination. The doctor diagnosed the plaintiff with a mild headache and visual disturbance, gave him a prescription for Vicodin, and advised him to see an eye doctor. The doctor again did not advise the plaintiff to take aspirin.

Two days later, the plaintiff saw his primary care physician for a follow-up appointment. The primary care physician ordered an MRI, but not on an expedited basis, and did not advise the plaintiff to take aspirin. The MRI that was done later that week showed that the plaintiff had suffered substantial permanent brain damage from a stroke that has left him with slurred speech, limitations on his ability to perform activities of daily living, and cognitive impairments that prevent him from working.

The plaintiff subsequently filed his Oregon medical malpractice lawsuit, alleging that the defendants’ medical negligence resulted in, on a more probable than not basis, “a [lost] chance for treatment which, 33 percent of the time, provides a much better outcome, with reduced or no stroke symptoms.”

The defendants filed motions to dismiss, arguing that the plaintiff had failed to allege ultimate facts sufficient to constitute a claim because the plaintiff had not alleged a recognized harm because Oregon law does not permit recovery for loss of chance and, in the alternative, the 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 the defendants’ motions to dismiss but allowed the plaintiff ten days in which to replead the complaint. When the plaintiff failed to amend his complaint, the trial court entered a general judgment dismissing the action with prejudice.

The plaintiff appealed to the Oregon Court of Appeals, which affirmed the lower court dismissal, holding that the 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 the defendants’ alleged negligent omissions resulted in his injury.

The Oregon Supreme Court Opinion

The Oregon Supreme Court stated that the loss-of-chance theory is responsive to cases like this one, in which the defendants undertook care of the plaintiff when he presented with symptoms of stroke, they breached the duty to the plaintiff by performing below the standard of care, the plaintiff suffered brain damage, and the defendants caused him to lose a 33 percent chance at recovering from the stroke, i.e., the plaintiff does not allege (and cannot prove) that the defendants caused his brain damage given that his chance of recovery with proper treatment was not greater than 50 percent.

The Oregon Supreme Court noted that over twenty state courts have permitted plaintiffs to assert a lost chance as a cognizable injury in a medical malpractice claim, although a significant number of states (about 15) have rejected the loss-of-chance theory of recovery in medical malpractice actions and instead adhere to a traditional “all-or-nothing approach” that requires the plaintiff to establish that the patient would have had a better than 50 percent chance of survival or a favorable outcome, which then triggers a right to recover all damages resulting from the defendant’s malpractice.

The Oregon Supreme Court stated that the physician-patient relationship is a special one in which the patient with an ailment or injury seeks to optimize the chance of recovery and the physician undertakes a duty of care, skill, and diligence to the patient. And when the physician’s negligence— conduct below the standard of care—deprives a patient of the one chance that the patient had at recovery, even when that chance was not greater than a fifty-fifty proposition, considerations of fairness weigh in favor of compensation for the destruction of that chance because the physician’s breach of the duty to the patient results in a situation in which no one can know whether the patient would have recovered with proper medical care.

The Oregon Supreme Court held “[a]lthough this court has not previously recognized loss of chance as a theory of recovery in a negligence case, we conclude that a loss of a substantial chance of a better medical outcome can be a cognizable injury in a common law claim of medical malpractice in Oregon. Accordingly, we conclude that the trial court erred in dismissing plaintiff’s claim.”

The Oregon Supreme Court stated that when the lost chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant’s negligence caused the plaintiff to lose the chance of a favorable medical outcome.

Source Smith v. Providence Health & Services, SC S063358

If you suffered harm due to medical negligence in Oregon or in another U.S. state, you should promptly find an Oregon medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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