I. HISTORICAL AND PROCEDURAL FACTS
Acting as the personal representative of his father's estate, plaintiff brought this medical negligence action against defendants Providence and Apogee. Plaintiff asserted that defendants were negligent in their care of plaintiff's father, Sloan, because they failed to diagnose and treat Sloan's rib fractures and internal bleeding. On November 3, Sloan, who was 85 years old, came to Providence's hospital after falling at home and was initially treated by Providence's emergency department personnel. He was later admitted to the hospital, where he was treated by Apogee's doctors. On November 7, Apogee's doctors discharged Sloan to a skilled nursing facility, Three Fountains. On November 17, Sloan's condition worsened significantly. His blood oxygen saturation levels dropped and his breathing became rapid and shallow. A nurse practitioner at Three Fountains believed that something was happening with Sloan's lungs and suspected he might have pneumonia. Sloan's condition continued to worsen over the next two days, and, on November 19, Three Fountains returned Sloan to the hospital. At the hospital, Sloan was found to have multiple displaced rib fractures and bleeding in his right chest cavity, which had caused his right lung to collapse. Later that same day, Sloan died of respiratory failure due to the bleeding in his chest cavity and the collapse of his lung.
Thereafter, plaintiff brought this medical negligence action against defendants. At trial, plaintiff's theory was that, when Sloan first came to the hospital, he had
Providence and Apogee did not dispute the medical cause of Sloan's death, but they did dispute that Sloan had displaced fractured ribs and internal bleeding during his first stay at the hospital. They suggested that "something happened" while Sloan was at Three Fountains that caused Sloan's death. Providence and Apogee did not identity a particular cause and did not assert that Three Fountains was negligent. But they presented evidence suggesting that Sloan's ribs could have fractured-or, if any of them were already fractured, the fractures could have been displaced-by Sloan's own movements while at Three Fountains or by actions
Because Providence and Apogee's theory raised the possibility that Sloan's death was caused by something that happened at Three Fountains, plaintiff requested a jury instruction regarding a tortfeasor's liability for the subsequent conduct of a third party (the Liability for Subsequent Conduct Instruction). Similar to Uniform Civil Jury Instruction 20.07, plaintiff's requested instruction stated:
"If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendantwould also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable." 1
Plaintiff argued that, because defendants were implying that Three Fountains caused Sloan's death, the jury needed to know that, if Providence and Apogee were negligent, they could be liable for Sloan's death, even if Three Fountains' subsequent conduct contributed to the death.
Defendants objected to the instruction. Defense counsel read the instruction as applicable only if defendants were asserting that Three Fountains was negligent, and he asserted that defendants were "not contending that anybody dropped the ball, necessarily." Defense counsel commented, "I think that what we have is what historically has been thought of as [an] intervening superseding cause. And if that's the kind of instruction that needs to be given then so be it."
The trial court refused to give plaintiff's Liability for Subsequent Conduct Instruction.
"because of the suggestions by [defense counsel] and argument that something that happened over at the Three Fountains home is responsible for the death of Mr. Sloan as opposed to the acts of negligence that are set forth in Plaintiff's *** complaint."
"The law assumes that all persons have obeyed the law and have been free from negligence.
"To recover, the plaintiff must prove two things by a preponderance of the evidence: (1) that the defendants were negligent in at least one of the ways claimed in the plaintiff's complaint; and (2) that the defendants' negligence was a cause of damage to the plaintiff.
"* * * * *
"A person is liable only for the reasonably foreseeable consequences of his or her actions. There are two things that must be foreseeable. First, the plaintiff must be within the general class of persons that one reasonably would anticipate might be threatened by the defendant's conduct. Second, the harm suffered must be within the general class of harms that one reasonably would anticipate might result from the defendant's conduct.
"A cause is defined as an act or omission that is a substantial factor in bringing about the harm. A substantial factor is an important or material factor and not one that is insignificant.
"Many factors or things may operate either independently or together to cause harm. In such a case, each may be a cause of the harm even though the others by themselves would have been sufficient to cause the same harm. If you find that the defendant's act or omission was a substantial factor in causing the harm to the plaintiff, you may find that the defendant's conduct caused the harm even though it was not the only cause.
"Where there are two or more possible causes for an injury for one or more of which a defendant is not responsible, there can be no recovery unless it is shown that as between the causes in question, the cause for which a defendant is responsible is the more probable.
"If the evidence leaves it as probable that the injury was a result of one cause as much as another, then the plaintiff cannot recover from that defendant."
On appeal, plaintiff assigned error to the trial court's refusal to give the instruction and its denial of his motion for a new trial. The Court of Appeals concluded that the instruction was a correct statement of the law, was supported by the evidence, and, in light of the parties' competing theories of the case, was necessary to avoid jury confusion. Sloan ,
II. ARGUMENTS ON REVIEW
On review, Apogee makes three arguments. First, Apogee argues that the Court of Appeals "erroneously applied the foreseeability principles" set forth in Fazzolari v. Portland School Dist. No. 1J ,
III. ANALYSIS
A. The Relevance of Reasonable Foreseeability
Apogee asserts that the Court of Appeals "erroneously based [its] analysis upon the law applicable to ordinary common law negligence claims, which require application of the Fazzolari foreseeability analysis to determine liability." Apogee does not identify a particular holding as error. Instead, it asserts that the Court of Appeals
"cited foreseeability as central to its analysis of whether the subject instruction was a correct statement of law, whether it was supported by evidence, and whether the failure to give the instruction substantially affected plaintiff's rights. Thus, this improper application of the Fazzolari foreseeability analysis significantly affected the court's analysis of the determinative issues in this case, and resulted in an erroneous decision."
As we understand it, Apogee's argument is that foreseeability plays no role in medical negligence cases. That is incorrect. As explained below, in medical negligence cases, reasonable foreseeability serves as a limit on the scope of a defendant's liability. We do not understand Apogee to argue that there is no such limit.
Traditionally, to prevail on a negligence claim, a plaintiff had to prove that (1) the defendant had a duty to the plaintiff, (2) the defendant breached the duty, (3) the breach was a factual cause and (4) a legal cause (or proximate cause) of (5) harm to the plaintiff measurable in damages. Aiken v. Shell Oil Co. et al. and Huey ,
"[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff."
Fazzolari ,
In ordinary negligence claims, foreseeability plays a role in determining whether a defendant's conduct is negligent (in other words, in setting a defendant's standard of care) and whether a defendant should be liable for particular consequences of their negligent conduct (in other words, establishing the scope of a defendant's liability). As this court explained in Piazza v. Kellim ,
"Foreseeability plays a role in at least two overlapping common-law negligence determinations: (1) whether the defendant's conduct unreasonably created a foreseeable risk of harm to a protected interest of the plaintiff such that the defendant may be held liable for that conduct-formerly described in terms of 'duty' and 'breach' as measures of negligent conduct; and (2) whether, because therisk of harm was reasonably foreseeable, the defendant may be held liable to the plaintiff for the particular harm that befell the plaintiff-a concept that traditionally was referred to as 'proximate' cause and which, in our current analytical framework, operates as a legal limit on the scope of a defendant's liability for negligent conduct."
See also Fazzolari ,
As the introductory phrase of Fazzolari language quoted above indicates, the test for ordinary negligence may not apply if a party invokes "a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty."
But the fact that a party has invoked a special relationship does not mean that foreseeability is irrelevant. As this court has explained,
"Even when a special relationship is the basis for the duty of care owed by one person to another, *** if the special relationship (or status or standard of conduct) does not prescribe a particular scope of duty, then 'common law principles of reasonable care and foreseeability of harm are relevant.' "
Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP ,
As relevant here, a physician has a specified duty of care. When a physician-patient relationship exists, the physician has
"the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."
ORS 677.095(1). In other words, a physician has an affirmative duty "to provide the patient with the level of care that a reasonably prudent, careful, and skillful practitioner of the physician's discipline would have provided to the patient under the same or similar circumstances and within the same community." Tomlinson v. Metropolitan Pediatrics, LLC ,
2. Pre -Fazzolari cases
In connection with its argument that a negligence claim based on a special relationship "is not subject to the general foreseeability principles applicable to an ordinary common law negligence claim," Apogee asserts that such a claim "is governed by the rules applicable to that claim pre- Fazzolari ." But even under those rules, foreseeability is relevant in special relationship cases, including medical negligence cases. On that point, Simpson v. Sisters of Charity of Providence ,
In Simpson , the plaintiff brought a medical negligence action against a hospital based on its x-ray technicians' failure to get a clear image of the plaintiff's spine after he had fallen from a roof. After reviewing the x-rays, a doctor concluded that the plaintiff could be moved.
In sum, we reject Apogee's first argument that the Court of Appeals erred in referencing foreseeability. Foreseeability can limit a defendant's liability, even in special relationship cases, including medical negligence actions. Neither Fazzolari nor its predecessors stand for the proposition that foreseeability is inapplicable in medical negligence actions.
B. The Correctness of the Requested Instruction
Apogee's second argument on review is that the Court of Appeals erred in concluding that the Liability for Subsequent Conduct Instruction was a correct statement of the law. As mentioned, Apogee asserts that the instruction would "hold the original tortfeasor liable for all injuries the plaintiff might suffer while undergoing medical treatment." (Emphasis in original.) According to Apogee, "the requested instruction states that defendant would be liable for 'any additional injury caused by the subsequent conduct of' the third party." (Emphasis in original.) That is incorrect. Again, plaintiff's requested instruction, which is similar to UCJI 20.07, states:
"If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant would also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable."
Apogee also argues that an original tortfeasor's liability for injuries caused by the subsequent conduct of a medical provider has a special limitation. According to Apogee, "a tortfeasor who causes injury to a plaintiff can be held liable for additional injuries caused by a third-party medical provider only if the injuries caused by that third party resulted from professional procedures directed at an injury which was caused or could have been understood by the physician to have been caused by the original injurious event. " (Emphases in original.) Apogee bases that argument on this court's decision in Woosley v. Dunning ,
In Woosley , a wrongful death action, the plaintiff alleged that the decedent had sustained a head injury in a car accident caused by the defendant and that, when the decedent underwent medical tests related to the head injury, he suffered a brain hemorrhage and died. The defendant moved for a directed verdict on the ground that, even if he was liable for the decedent's head injury from the car accident, he was not liable for the decedent's death from the medical testing. The defendant asserted that "the plaintiff's evidence established as a matter of law that the diagnostic tests were an intervening force which constituted a superseding cause of [the decedent's] death."
That interpretation is supported by the fact that, in discussion of the jury instructions in the case, the Woosley court endorsed the rule that an original tortfeasor is liable for the reasonably foreseeable consequences of his conduct, including injuries caused by-in the parlance of the time-an intervening force. Specifically, in holding that the trial court had not erred in refusing to give the defendant's requested instructions regarding intervening forces and superseding causes, this court stated that the defendant's instructions were "incomplete" because
"they would not have informed the jury of the important qualification *** that 'where the negligent conduct of the actor (defendant) creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing this harm, such intervention is not a superseding cause.' "
In addition to Woosley , Apogee relies on the Court of Appeals' decision in Martin . In Martin , the plaintiff brought an action against the defendant, seeking damages for injuries suffered in a car accident. As part of the discovery process in that case, the defendant arranged to have the plaintiff examined by a doctor that the defendant had selected. During that examination, the doctor injured the plaintiff's knee, which had not been injured in the car accident. The plaintiff then amended his complaint against the defendant to include an allegation regarding the knee injury. The trial court struck the allegation, apparently on the ground that
After prevailing on his claims for the injuries he sustained during the car accident itself, the plaintiff appealed, asserting that the trial court had erred in striking his allegation regarding the knee injury. The Court of Appeals agreed that the trial court had erred. The court noted that it was unclear how the knee injury occurred or why the knee became an object of the doctor's attention. It recognized the possibility that, during a medical examination of one condition, a doctor may notice and explore an entirely independent and unrelated condition.
Martin stands for the proposition that the fact that a plaintiff consulted a doctor about an injury caused by an original tortfeasor is not sufficient to make the original tortfeasor liable for all injuries the plaintiff sustains in connection with the consultation.
Here, we do not think that the facts alleged are, as a matter of law, outside the scope of liability. Plaintiff's theory of the case was that Apogee failed to diagnose and treat Sloan's fractured ribs and internal bleeding. As this court recognized in Simpson , in which it held that a hospital's liability for its x-ray technicians' failure to get clear x-rays could extend to injuries caused by a doctor's later actions based on the x-rays, if a medical care provider negligently fails to provide information to a subsequent medical care provider, the first provider can be liable for injuries caused by the second provider's actions, if both the second provider's actions and the resulting injuries were reasonably foreseeable consequences of the first provider's negligence. Martin does not alter that rule.
In sum, Apogee's second argument-that plaintiff's requested instruction is not a correct statement of law-is unavailing. Contrary to Apogee's assertion, the instruction does not provide that an original tortfeasor is liable for any additional injury caused by the subsequent conduct of a third party. Instead, it limits an original tortfeasor's liability to reasonably foreseeable subsequent conduct and injuries, which is consistent with this court's decisions in Simpson and Woosley and the Court of Appeals' decision in Martin .
C. The Effect of the Refusal to Give the Requested Instruction
Apogee's third and final argument is that, even if the trial court erred in refusing to give plaintiff's Liability for Subsequent Conduct Instruction, the error did not substantially affect plaintiff's rights and, therefore, does not require reversal. ORS 19.415(2) ("No judgment shall be reversed or modified except for error substantially affecting the rights of a party."). Specifically, Apogee argues that the trial court's failure to give the instruction did not
When determining whether a trial court's refusal to give a party's requested instruction substantially affected the party's rights, this court considers the instructions as a whole and in light of parties' theories and evidence. Purdy v. Deere and Company ,
As described above, Apogee's theory at trial was that Sloan's death was caused by something that happened after Sloan left its care and went to Three Fountains. Apogee did not specify a particular cause, but it presented evidence suggesting that Sloan's displaced rib fractures and internal bleeding could have been caused by ordinary movements, physical therapy, or a fall. Apogee's evidence raised the possibility that Sloan himself could have caused the displacement and bleeding by breathing, rolling, getting in and out of bed, or falling. It also raised the possibility that Three Fountains could have caused the displacement and bleeding through its actions (in physical therapy) or its inactions (in failing to supervise Sloan's movements, if Sloan fell at Three Fountains). In addition, Apogee presented evidence that Sloan's condition deteriorated for two days at Three Fountains, before Three Fountains returned Sloan to the hospital, thereby raising the possibility that Three Fountains caused Sloan's death by failing to respond promptly. In short, Apogee's defense was that someone else's subsequent conduct caused Sloan's death. Given Apogee's theory and evidence, it was important for the jury to be instructed on the law governing a defendant's liability for the injuries caused by another's subsequent
"Where there are two or more possible causes for an injury for one or more of which a defendant is not responsible, there can be no recovery unless it is shown that as between the causes in question, the cause for which a defendant is responsible is the more probable.
"If the evidence leaves it as probable that the injury was a result of one cause as much as another, then the plaintiff cannot recover from that defendant."
That instruction would have encouraged the jury to identify possible causes, determine who was responsible for each of them, and then determine which cause was the more probable. Because the jury was not specifically instructed that Apogee could be responsible for the subsequent conduct of another, it could have erred in determining the causes for which Apogee could be responsible, and that error could have affected its determination of whether Apogee was liable for causing Sloan's death. Consequently, we conclude that-in light of Apogee's theory and evidence and the instruction it requested regarding two or more possible causes-there is some likelihood that the trial court's refusal to give plaintiff's requested instruction caused the jury to base its verdict on an incomplete understanding of the relevant law and to reach a legally erroneous result. Therefore, we must reverse and remand.
To summarize, we hold that, contrary to Apogee's arguments on review, (1) the Court of Appeals did not err in applying foreseeability principles because reasonable foreseeability limits liability in medical negligence cases, (2) plaintiff's requested jury instruction regarding an original tortfeasor's liability for the subsequent conduct of another was a correct statement of the law because an original tortfeasor is liable for the reasonably foreseeable consequences of his conduct, including reasonably foreseeable conduct and injuries by subsequent medical providers, and (3) the trial court's failure to give plaintiff's requested instruction requires reversal because, given how the case was litigated and the instructions the jury received, the jury could have based its verdict on an incorrect understanding of the relevant law.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court for defendant Apogee is reversed and remanded; the circuit court judgment is otherwise affirmed.
Notes
Uniform Civil Jury Instruction 20.07, "Liability for Subsequent Conduct of Third Party," provides:
"If you find that the defendant's conduct was negligent and caused some injury to the plaintiff, then the defendant is liable for any reasonably foreseeable additional injury to the plaintiff. The defendant is liable even if the additional injury was caused by another person's subsequent negligent or wrongful conduct, as long as the subsequent conduct and the risk of additional injury were reasonably foreseeable."
In addition to the quoted instruction, plaintiff asked for another instruction on a tortfeasor's liability for the subsequent conduct of another. Sloan ,
Because it reversed and remanded based on the trial court's refusal to give the Liability for Subsequent Conduct Instruction, the Court of Appeals did not address whether the trial court had erred by denying plaintiff's motion for a new trial. Sloan ,
As mentioned, the jury found Providence was not negligent. Accordingly, Providence is not a party to this case on review.
In this case, plaintiff's instruction informed the jury that, if Apogee negligently injured Sloan, it would be liable for the reasonably foreseeable consequences of that injury, including additional injuries caused by others' subsequent conduct, if both the subsequent conduct and additional injuries were reasonably foreseeable . In the instruction, reasonable foreseeability limits the defendant's liability.