An Oregon Supreme Court ruling issued last week has received remarkably little coverage outside of the specialized legal press, but it deserves much more attention. In the case of Smith v Providence Health & Services (361 Or 456) the court reversed rulings from both the trial and appellate courts, and found that a legal doctrine known as Loss of Chance “is cognizable under Oregon common law.” In doing so, it significantly increased the rights of ordinary Oregonians confronted with failures or negligence on the part of the medical system.
As the Bend Bulletin, one of the few newspapers to have taken note of the case, aptly noted, the ruling means that Oregonians “can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.”
The case revolved around a man “who went to a Hood River emergency room in 2011 concerned that he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later (he) had incurred significant brain damage.” Both the article and court’s opinion note that had these precautions been taken there is a one-in-three chance that the plaintiff would have recovered substantially, perhaps even completely, from the stroke.
The doctrine applied by the Court is known as “Loss of Chance” and with last week’s ruling Oregon joins 24 other states in allowing it as grounds for a finding of negligence, according to the Bulletin. As defined by USLegal.com, “Loss of Chance doctrine is a legal principal… which allows a plaintiff to obtain damages from a defendant for a heightened risk of death or injury, even if the plaintiff cannot prove by a preponderance of the evidence that the ultimate injury was caused by the defendant’s negligence.” Loss of Chance applies when a plaintiff can show that medical personnel were negligent in failing to conduct tests or offer treatment that they should have considered and which, has they done so, might have resulted in a significantly different outcome.
Since Oregon does not have a Loss of Chance law on the books the key question for the state Supreme Court was whether Oregon Common Law, specifically its approach to negligence, extends to Loss of Chance as a concept. The newspaper notes that both the Oregon Medical Association and the American Medical Association argued that “allowing loss of chance cases would drive up the number of malpractice suits and malpractice insurance premiums… But the justices said the groups couldn’t provide any data from other states to support those claims.” That sentence alone can be seen as a notable victory for consumers in an age when medicine and hospitals are becoming increasingly corporate and bottom-line driven.
As a Portland attorney whose focus has always been on expanding court access for ordinary Oregonians I am very pleased by this decision. Now more than ever it is important for people to understand that the legal system offers them opportunities to obtain the justice they deserve even if doing so requires squaring off against large and powerful corporations, or tackling complicated issues like medical malpractice. The Oregon Supreme Court is to be applauded for this decision.
Bend Bulletin: Oregon Supreme Court expands malpractice definition
USlegal.com: Loss-of-Chance Doctrine Law and Legal Definitions