SOURCE: American Medical Association
Physicians do not—and cannot—guarantee a good result for every patient, something that juries need to be reminded of before deliberating. That is especially true in tough cases that may pull at the heartstrings, physicians tell the Oregon Supreme Court.
If an Oregon appellate decision is allowed to stand, jurors would no longer hear a long-standing piece of the Oregon’s Uniform Civil Jury Instruction that says that “physicians are not negligent merely because their efforts were unsuccessful,” and that “a physician does not guarantee a good result by undertaking to perform a service.”
On top of that, if the appellate court decision in Martineau v. Willamette Medical Center stands, it would create a new way for patients’ loved ones to bring a lawsuit—one that would do “significantly more harm than good,” physicians tell the Oregon Supreme Court in an amicus brief.
The Litigation Center of the American Medical Association and State Medical Societies joined the Oregon Medical Association (OMA) in filing an amicus brief that asks the state’s highest court to entirely reverse the appellate court decision.
“Because medical results are inherently unpredictable, it is appropriate that a physician’s undertaking of medical services carries a legal duty only to use due care under the circumstances,” physicians tell the court. “That duty appropriately targets what medical practitioners can control—that is, their conduct and not medical results.”
Like many states, Oregon law for decades has said that a physician’s duty is to provide care in a careful manner that is on par with peers in their community facing the same or similar circumstances. And nothing in the state’s law suggests the physician guarantees a particular result.
And Oregon juries for decades have heard the instruction that physicians are not negligent merely because of the outcome.
“Because the practice of medicine is subject to uncertainties and risks that modern science has not eliminated and physicians are presented with an infinite combination of factors that affect medical decisions and outcomes, it is imperative that medical negligence liability remain based on legal fault, and not medical results,” physicians tell the court.
And even though medical advancements have made some procedures routine, no medical procedure is entirely risk free. In addition, studies have shown that “jurors cannot easily disregard an injury without attaching some degree of culpability to the responsible provider,” physicians tell the court.
“Medical malpractice law must reflect these realities. Physicians must remain responsible only for their negligent conduct, and not for bad outcomes or unexpected results,” the AMA Litigation Center and OMA brief says. “In cases such as this one that are likely to trigger the jury’s sympathies and attachment of fault because a patient has suffered a tragic result that has been described as preventable had a specific procedure been undertaken, it is imperative that the court’s instructions redirect the jury’s focus back to the legal standard of care.”
Oregon law recognizes a claim for an injury when there is a loss of a substantial chance of a better medical outcome. But if the court doesn’t overturn the Martineau v. Willamette Medical Center appellate decision, it would “unreasonably extended this judicially-recognized injury to create a new ‘lost chance at survival’ injury that is compensable only after death.”
Physicians say that goes too far and it creates unsound policy. They tell the court, among other things, that:
- There is no principled basis for medical professionals to be the only defendants with liability exposure outside the wrongful death statute when the actionable negligence is alleged to have resulted in death.
- It creates an elusive standard of care that is divorced from the actual practice of medicine.
- Physicians would shift how they make decisions on medical treatments out of fear of a lawsuit if they don’t attempt a non-standard or a potentially less appropriate option. This, in turn, would reduce the overall quality of patient care and increase expensive inefficiencies in Oregon’s health care system.