Smith v. Providence Health & Services - Oregon
347 P.3d 820
Or. Ct. App.2015Background
- Plaintiff (49) presented to Providence Hood River Memorial Hospital within two hours of stroke symptoms; CT showed no bleeding but physicians (Desitter, then Harris) did not diagnose stroke, order MRI, or advise aspirin, and he was discharged twice.
- An MRI performed days later showed substantial brain damage from a stroke; plaintiff suffers permanent cognitive and speech impairments.
- Plaintiff sued Providence, Desitter, Harris, and Hood River Emergency Physicians for medical negligence, alleging defendants’ omissions deprived him of a 33% chance of a better outcome (a “loss of chance” theory).
- Defendants moved to dismiss under ORCP 21 A(8), arguing loss of chance is not a cognizable claim in Oregon and that plaintiff failed to plead causation to the required standard.
- Trial court granted dismissal; plaintiff appealed, claiming loss of chance should be recognized at common law (distinct from wrongful death statutory claims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "loss of chance" is a cognizable common-law claim in Oregon | Loss of chance is a valid theory of recovery for medical negligence and should be recognized at common law | Oregon law (including Joshi) rejects loss of chance as sufficient causation; plaintiff must show harm more likely than not caused by negligence | Loss of chance is not a cognizable theory of recovery at common law in Oregon; dismissal affirmed |
| Whether plaintiff pleaded causation to the required legal standard | Plaintiff alleged defendants’ omissions deprived him of a 33% chance of a better outcome, which is sufficient to show causal link | A 33% chance is only a possibility; plaintiff did not allege it was more likely than not that defendants’ conduct caused the injury | Plaintiff failed to plead causation by reasonable probability; allegations are speculative and insufficient |
| Whether Joshi is limited to wrongful death claims or applies to common-law negligence | Plaintiff: Joshi applies only to statutory wrongful death claims and not to common-law personal injury claims | Defendants: Joshi’s causation analysis reflects the common-law reasonable-probability standard and applies | Court applied Joshi’s reasoning to common-law negligence and concluded it controls causation analysis |
| Whether deprivation of a chance can itself be characterized as the injury caused by negligence | Plaintiff: loss of chance is the injury, avoiding causation difficulties | Defendants: loss of chance is evidentiary of increased risk, not a standalone injury under Oregon law | Court declined to treat loss of chance as the injury without further published discussion; causation remains required |
Key Cases Cited
- Joshi v. Providence Health System, 342 Or 152 (2006) (rejecting loss-of-chance as sufficient proof of causation in a wrongful death action under ORS 30.020)
- Lowe v. Philip Morris USA, Inc., 344 Or 403 (2008) (discusses causation standards and noted Joshi left some questions open)
- Son v. Ashland Community Healthcare Servs., 239 Or App 495 (2010) (articulates elements of professional negligence and causation standard)
- Sims v. Dixon, 224 Or 45 (1960) (requires causation with quality of reasonable probability)
- Marcum v. Adventist Health System/West, 345 Or 237 (2008) (plaintiff must show defendant’s conduct was the likely cause of injury)
- Horn v. National Hospital Ass'n, 169 Or 654 (1942) (absence of treatment must have resulted in damage that would not have occurred with treatment)
- Simpson v. Sisters of Charity of Providence, 284 Or 547 (1978) (medical malpractice requires proof negligent care caused injury nonnegligent care would have avoided)
- Myers v. Dunscombe, 64 Or App 722 (1983) (directed verdict where causation would be mere speculation)