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Oregon High Court Embraces Loss Of Chance Theory In Medical Negligence

On behalf of David Foster

In a case of first impression, the court adopted loss of chance as a measurable injury in medical malpractice.

The Oregon Supreme Court has adopted the loss-of-chance theory of medical malpractice, a type of medical negligence that looks at whether a medical provider reasonably offered treatments that would increase the chance of improvement or survival.

According to The Bend Bulletin, this theory of recovery within the realm of medical malpractice as of 2014 was available in 24 states of the 41 that had ruled on the question.

Smith v. Providence Health & Services-Oregon

In May 2017, the Oregon Supreme Court decided the case of Smith v. Providence Health & Services-Oregon, which concerned the medical treatment of plaintiff Joseph Smith after a stroke. Smith, then 49, visited an Oregon emergency room for visual problems, headache, confusion and slurring of his speech, concerned about a stroke.

The details of the plaintiff’s allegations are in the case opinion, available at the link above. To summarize, in two ER visits and a follow-up appointment, the plaintiff alleged that he did not receive thorough exams and was not told to take aspirin. Despite a CT scan that did not show he had bleeding in his brain, which made him a candidate for receiving tPA treatment, doctors did not administer tPA.

According to the American Stroke Association, tPA can dissolve a blood clot, thereby increasing blood flow to the brain.

Later in the week, an MRI showed permanent, substantial brain damage, causing “slurred speech, limitations on his ability to perform activities of daily living, and cognitive impairments that prevent him from working.”

Loss of chance

The Supreme Court described the issue as whether Oregon should allow an injured plaintiff to recover in common-law (judge decided) medical malpractice for “loss of a chance at a better medical outcome” – whether the loss of chance of improvement is an “injury” for which a jury could award damages. In other words, should the court recognize the “lost chance as an injury in itself” subject to monetary valuation.

Smith’s assertion was that “he lost a 33 percent chance at no or limited complications from his stroke because of defendants’ negligence.”

After reviewing the history of the theory in states across the country, the Oregon Supreme Court concluded that it would recognize that the loss of chance could be a “cognizable injury in a common-law claim of medical malpractice …” The court said that its previous decisions supported that physical and emotional distress “directly and foreseeably attributable to negligence involving diagnosis and treatment of a patient is recoverable under a loss-of-chance theory.”

The court assessed that the plaintiff’s complaint was sufficient to support this theory. Pleadings must include with “specificity the lost chance of a better medical outcome” … including the “percentage and qualify of his or her loss of chance” … based on expert opinion, scientific evidence and “reasonable medical probability.”

The lawyers at the Lake Oswego office of Sokol & Foster, P.C., represent people throughout Oregon and Washington injured by medical negligence.