The Supreme Court of the State of Oregon (“Oregon Supreme Court”) ruled in its opinion filed on April 4, 2019 in an Orgeon Medical malpractice case that the plaintiff’s requested jury instruction regarding an original tortfeasor’s liability for the subsequent conduct of another was a correct statement of the law because an original tortfeasor is liable for the reasonably foreseeable consequences of his conduct, including reasonably foreseeable conduct and injuries by subsequent medical providers, and the trial court’s failure to give the 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.
The Oregon Medical Malpractice wrongful death lawsuit alleged that an 85-year-old man was brought to the defendant hospital after he had fallen at home. He was initially treated in the hospital’s emergency department and was then admitted as an inpatient. The man was subsequently discharged to a nursing home for rehabilitation. His condition deteriorated at the nursing home and he was subsequently transferred back to the hospital, where he 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, the man died of respiratory failure due to the bleeding in his chest cavity and the collapse of his lung.
Thereafter, the man’s son filed an Oregon medical malpractice wrongful death lawsuit against the hospital and a medical practice that provided care to his father in the hospital. The nursing home was not a party to the lawsuit. The plaintiff alleged that his father had fractured ribs that were causing bleeding into his chest cavity and that the defendants failed to diagnose and treat those problems, which continued and eventually led to the man’s death.
The defendants did not dispute the medical cause of the man’s death, but they did dispute that he had displaced fractured ribs and internal bleeding during his first stay at the hospital. The defendants suggested that “something happened” while the man was at the nursing home that caused his death. The defendants did not identify a particular cause and did not assert that the nursing home was negligent, but they presented evidence suggesting that the man’s ribs could have been fractured, or if any of the ribs were already fractured, the fractures could have been displaced by the man’s own movements while at the nursing home or by actions or omissions by the nursing home.
Because the defendants’ theory raised the possibility that the man’s death was caused by something that happened at the nursing home, the plaintiff requested a jury instruction regarding a tortfeasor’s liability for the subsequent conduct of a third party (i.e., the Liability for Subsequent Conduct Instruction). The trial court refused to provide the instruction, and the Oregon medical malpractice jury subsequently determined that the defendant hospital was not negligent but that the defendant medical practice was negligent. However, the jury also found that the defendant medical practice’s negligence was not the cause of the man’s death. After the verdict, the plaintiff moved for a new trial, arguing that the trial court had erred by refusing to give the Liability for Subsequent Conduct Instruction. The trial court denied the plaintiff’s motion for new trial, and the plaintiff appealed.
Liability For Subsequent Conduct Instruction
The Oregon medical malpractice plaintiff requested the following jury instruction:
“If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant 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.”
Oregon Supreme Court Opinion
The Oregon Supreme Court stated that if a medical care provider negligently fails to provide information to a subsequent medical care provider, the first provider can be liable for injuries caused by the second provider’s actions, if both the second provider’s actions and the resulting injuries were reasonably foreseeable consequences of the first provider’s negligence. The Oregon Supreme Court stated that the plaintiff’s requested instruction does not provide that an original tortfeasor is liable for any additional injury caused by the subsequent conduct of a third party; instead, it limits an original tortfeasor’s liability to reasonably foreseeable subsequent conduct and injuries.
The Oregon Supreme Court held: “Because the jury was not specifically instructed that [the defendant medical practice] could be responsible for the subsequent conduct of another, it could have erred in determining the causes for which [the defendant medical practice] could be responsible, and that error could have affected its determination of whether [the defendant medical practice] was liable for causing [the man’s] death. Consequently, we conclude that – in light of [the defendant medical practice’s] theory and evidence and the instruction it requested regarding two or more possible causes — there is some likelihood that the trial court’s refusal to give plaintiff’s requested instruction caused the jury to base its verdict on an incomplete understanding of the relevant law and to reach a legally erroneous result. Therefore, we must reverse and remand.”
Sloan v. Providence Health System-Oregon, 364 Or 635 (2019).
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