Oregon Court Ruling Opens Avenues for Defensive Medicine, Lawsuit Abuse

By Law360 News, Oregon Source

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  • May 30, 2017

The Oregon Supreme Court on Thursday revived a patient’s medical malpractice suit accusing a hospital and doctors of depriving him of a chance of a full recovery from a stroke, saying such “loss of chance” theories are fair game in medical negligence cases.

The state’s highest court unanimously overturned the dismissal of a suit alleging Drs. Linda L. Desitter and Michael R. Harris and Providence Hood River Memorial Hospital failed to properly follow up on patient Joseph Smith’s complaints of stroke symptoms which robbed him of a one-third chance at a full recovery in cases like his, had he received timely and proper treatment.

The justices said in the context of Oregon common-law medical malpractice claims, loss of chance of a better medical outcome is itself a type of injury, rejecting the defendants’ arguments that such a ruling would be an improper relaxation of standards regarding causation, or that a health care provider’s alleged negligence caused a patient’s injury.

“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,” the justices wrote in a 30-page opinion.

The state Supreme Court noted that of the 41 states that have addressed the loss-of-chance issue, 24 states have recognized some version of the theory, while 20 state courts have allowed medical malpractice plaintiffs to assert lost chance as a cognizable injury.

While many states bar loss-of-chance theories and instead take an “all-or-nothing” approach which requires a medical malpractice plaintiff to prove the patient would’ve had a better than 50 percent chance of survival or favorable outcome, the high court said this approach is problematic because it insulates health care providers from claims made by patients whose odds of recovery are 50 percent or less, and runs counter to the purpose of tort law.

“For example, a negligent medical provider who prevents a patient from having a shot at a 45 percent chance of a favorable medical outcome need not compensate that patient at all,” it said. “That patient bears the entire cost of the negligent conduct, a result that does not spread the risk of the negligent conduct to the negligent party, although ‘a function of the tort system is to distribute the risk of injury to or among responsible parties.’”

An attorney for Smith told Law360 they were satisfied with the result, saying it was a big win for health care consumers in Oregon.

“I’m pleased that the Oregon Supreme Court recognized that a loss of a chance of whole or even partial recovery is an injury deserving of fair compensation,” he said. “It’s fair to say it’s a big win for the plaintiffs bar, and more appropriately, for the clients we represent. We have a 49-year old guy who used to be a bodybuilder and [restaurant manager] and now he can’t even hold down a job as a custodian because his brain is fried by the stroke he had. He definitely missed his opportunity to get treatment which could have alleviated all of that.”

A spokesman for Providence Health said they are currently reviewing the ruling.

“Following that, we will begin making preparations to respond to the lawsuit as it returns to circuit court,” the spokesman said.

Representatives for the other parties did not immediately respond to requests for comment Thursday.

The suit was filed in February 2013 and stems from an emergency room visit made by Smith in 2011 due to concerns that he might be having a stroke. Desitter examined Smith without performing a complete physical or neurological examination, and after a CT scan showed no brain bleeding she determined that his symptoms were caused by a sleep aid he had taken and she discharged him.

The next day Smith returned complaining of worsening pain and continued visual problems and again Desitter did not perform a complete examination and diagnosed him with a headache and prescribed Vicodin, according to the opinion.

Two days later Smith was examined by Harris, who ordered an MRI but not on an expedited basis. The MRI later revealed substantial brain damage caused by a stroke, according to the opinion.

Smith is represented by Stephen C. Hendricks of Hendricks Law Firm PC.

Providence Health is represented by George S. Pitcher and Rachel A. Robinson of Lewis Brisbois Bisgaard & Smith LLP.

Harris and is represented by Lindsey H. Hughes and Hillary A. Taylor of Keating Jones Hughes PC.

Desitter is represented by Jay Beattie of Lindsay Hart LLP.

The case is Joseph L. Smith v. Providence Health & Services Oregon et al., case number 28, in the Supreme Court of Oregon.

–Editing by Pamela Wilkinson.