362 P.3d 694
Or. Ct. App.2015Background
- Rowen suffered paralysis from post-polypectomy bleeding after a 2009 polypectomy performed by Dr. Gonenne; suit against Gonenne, Eugene Gastroenterology Consultants, P.C., and Oregon Endoscopy Center; Marie Rowen sued for loss of consortium; plaintiffs alleged breach of standard care in continuing aspirin/Plavix prior to polypectomy and in scheduling the procedure; defendants argued there was no medical consensus and that stopping meds posed other risks; trial evidence included a benchmarking study and other studies, and the court allowed cross-examination of a vascular surgeon; jury ruled for defendants; plaintiffs appeal on evidentiary rulings regarding privilege, 2010 study, and cross-examination of the vascular surgeon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bench-marking study admissibility under ORS 41.675 | Study privileged as written report to peer review body | Not shown to be prepared for or addressed to a peer review body | Court refused privileged exclusion; admission affirmed |
| Admission of 2010 study relative to causation/impeachment | Study relevant to causation and impeachment of Gonenne | Evidence was unduly prejudicial and not central | Court did not abuse discretion; exclusion upheld |
| Cross-examination of vascular surgeon regarding aspirin/plavix use | Evidence irrelevant to polypectomy standard of care | Evidence relevant to causation and patient history | Court within its discretion to admit; relevant to causation |
Key Cases Cited
- State v. Langley, 314 Or 247 (1992) (preliminary questions of privilege depend on factual record under OEC 104(1))
- State v. Carlson, 311 Or 201 (1991) (burden for privilege determination under OEC 104(1) is preponderance)
- State v. Wilson, 323 Or 498 (1996) (appellate review of factual findings on privilege decisions)
- Groff v. S.I.A.C., 246 Or 557 (1967) (preliminary questions of privilege require evidence review)
- Prime Properties, Inc. v. Leahy, 234 Or App 439 (2010) (standard of review for factual determinations under OEC 104(1))
- McCathern v. Toyota Motor Corp., 332 Or 59 (2001) (abuse-of-discretion standard for evidentiary rulings)
- Page v. Cushing, 80 Or App 690 (1986) (abuse-of-discretion review framework)