386 P.3d 203
Or. Ct. App.2016Background
- Jack Sloan (85) presented to Providence ER after a fall on Nov 3, 2007, with chest/right-flank pain; a portable chest x‑ray was read as showing no rib fractures but plaintiff’s experts later identified displaced rib fractures and fluid.
- Hospitalists employed by Apogee treated anemia and atrial fibrillation, transfused blood, performed endoscopy/colonoscopy, but ordered no further chest imaging or treatment for suspected rib fractures/hemothorax; Sloan was discharged to a skilled nursing facility (Three Fountains) on Nov 7.
- At Three Fountains Sloan’s oxygenation declined beginning Nov 17; on Nov 19 ER imaging showed a large right hemothorax, multiple displaced rib fractures (3–5), two causing bleeding; Sloan died and autopsy attributed death to respiratory failure from right hemothorax and lung collapse due to multiple rib fractures from his fall.
- Plaintiff (personal representative) sued Providence and Apogee for wrongful death, alleging Apogee negligently failed to diagnose/treat rib fractures and bleeding and wrongfully discharged Sloan; Apogee defended that an intervening event or care at Three Fountains caused the fatal displacement/bleeding.
- Plaintiff requested two jury instructions: (1) a general “Conduct of Third Party” instruction tying liability for subsequent third‑party conduct to reasonable foreseeability, and (2) a “Conduct of Three Fountains” instruction stating Apogee is liable for additional injuries caused by Three Fountains; the trial court refused both and the jury found Apogee negligent but not the cause of death.
- The court of appeals reversed as to Apogee, holding the trial court erred in refusing the Conduct of Third Party instruction (but not the narrower Conduct of Three Fountains instruction) and remanded for a new trial on Apogee liability and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing the general "Conduct of Third Party" jury instruction (liability for additional injury from third‑party conduct if reasonably foreseeable) | Requested instruction correctly stated law, was supported by pleadings/evidence, and necessary because Apogee argued Three Fountains caused the fatal worsening | Apogee argued it did not blame Three Fountains as a tortfeasor and framed the issue as intervening superseding cause; also argued pleading/evidence didn’t support the instruction | Reversed: instruction correctly stated law (cause‑in‑fact + reasonable foreseeability), was supported by evidence and pleadings, and its omission likely affected the verdict; error requires retrial as to Apogee |
| Whether trial court erred by refusing the specific "Conduct of Three Fountains" instruction (stating Apogee liable for additional injuries even if Three Fountains was negligent) | Instruction would clarify Apogee can be liable even if Three Fountains caused the death | Apogee relied on Martin/Woosley distinctions and argued pleadings didn’t allege subsequent injury by Three Fountains | Affirmed refusal: instruction was incomplete/incorrect because it omitted the required reasonable‑foreseeability limitation and so did not correctly state the law |
Key Cases Cited
- Hernandez v. Barbo Machinery Co., 327 Or 99 (discussing standard for giving requested jury instructions)
- Fazzolari v. Portland School Dist. No. 1J, 303 Or 1 (role of foreseeability in negligence and scope of liability)
- Towe v. Sacagawea, Inc., 357 Or 74 (cause in fact requirement in negligence)
- Lasley v. Combined Transport, Inc., 351 Or 1 (foreseeability as limit on liability for factual cause)
- Woosley v. Dunning, 268 Or 233 (original tortfeasor may be liable for additional injury from medical care provided in good faith to treat the original injury)
- Martin v. Bohrer, 84 Or App 7 (limits on liability for subsequent medical procedures to those directed at injuries related to the original tort)
- Purdy v. Deere and Company, 281 Or App 407 (instructional correctness requires completeness and accuracy)