Smith v. Providence Health & Services - Oregon
361 Or. 456
| Or. | 2017Background
- Plaintiff Joseph Smith presented to Providence Hood River ER with acute stroke symptoms on a Friday and was discharged after an incomplete exam and CT showing no hemorrhage; physician did not recommend aspirin or expedited MRI.
- He returned the next day with worse symptoms, was again discharged without thorough neurologic workup; MRI later in the week revealed substantial, permanent brain damage from a stroke.
- Plaintiff sued the treating physicians, medical groups, and the hospital alleging medical negligence under a "loss-of-chance" theory: defendants’ negligence deprived him of a 33% chance of a much better outcome.
- Defendants moved to dismiss under ORCP 21 A(8), arguing Oregon law does not recognize loss-of-chance as a compensable injury and that the complaint failed to plead causation properly; the trial court dismissed with prejudice and Court of Appeals affirmed.
- The Oregon Supreme Court granted review to decide whether Oregon common law permits a loss-of-chance recovery in medical malpractice and whether that theory alters causation standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oregon common law recognizes loss of chance of a better medical outcome as a distinct compensable injury in medical malpractice | Smith: loss of chance is an injury itself and cognizable; many jurisdictions permit it | Defs: Oregon precedent (including Joshi, Lowe) forecloses loss-of-chance; it would relax causation and be unworkable | Court: Recognizes limited loss-of-chance doctrine in common-law medical malpractice; loss of chance can be a discrete injury |
| Whether loss-of-chance theory requires relaxing causation standard (i.e., proving <50% causation) | Smith: no relaxation required; plaintiff must still prove defendant more likely than not caused the loss of the chance | Defs: allowing loss-of-chance effectively lowers causation burden to less-than-50% and conflicts with precedent | Court: No relaxation; causation applies to whether negligence caused the loss of the chance by a preponderance of the evidence |
| Whether existing Oregon cases (Horn, Lippold, Joshi, Lowe) bar recognition of loss-of-chance | Smith: those cases did not decide whether lost chance is an injury; Joshi concerned wrongful-death statute | Defs: prior Oregon cases require but-for/probable causation and therefore bar the doctrine | Court: Joshi is distinguishable (statutory wrongful death); Horn and Lippold concerned evidentiary causation failures, not the injury question, so they do not preclude recognizing loss of chance |
| Pleading and proof requirements for loss-of-chance claims | Smith: may plead percentage and resulting damages; here alleged 33% lost chance and non-economic and wage damages | Defs: plaintiff must plead more specificity; doctrine would be unworkable and invite speculative statistics | Court: Plaintiff must plead percentage and quality of lost chance supported by expert/scientific evidence; 33% allegation here sufficed at pleading stage |
Key Cases Cited
- Joshi v. Providence Health System, 342 Or 152 (Or. 2006) (wrongful-death statute requires proof that negligence caused decedent’s death, not merely increased risk)
- Lowe v. Philip Morris USA, 344 Or 403 (Or. 2008) (increased risk of future physical injury alone is not actionable; discussed Joshi’s limited holding)
- Horn v. Nat’l Hosp. Ass’n, 169 Or 654 (Or. 1942) (failure-to-diagnose case; plaintiff’s causal proof insufficient to show earlier treatment would have prevented later ailments)
- Lippold v. Kidd, 126 Or 160 (Or. 1928) (plaintiff failed to prove proximate cause where evidence did not show foreign body caused ultimate loss of sight)
- Hicks v. United States, 368 F.2d 626 (4th Cir. 1966) (early influential opinion holding defendant accountable for destroying a substantial chance of survival)
- Hamil v. Bashline, 481 Pa 256 (Pa. 1978) (Pennsylvania Supreme Court recognized loss-of-chance approach in medical malpractice causation analysis)
- Matsuyama v. Birnbaum, 452 Mass 1 (Mass. 2008) (comprehensive adoption of loss-of-chance as cognizable injury in medical malpractice, with preponderance standard applied to loss of chance)
- Dickhoff v. Green, 836 NW2d 321 (Minn. 2013) (Minnesota Supreme Court adopted loss-of-chance doctrine in medical malpractice)
- Feist v. Sears, Roebuck & Co., 267 Or 402 (Or. 1972) (discussed in relation to valuing probabilistic future harms and jury guidance on damages)