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Saturday, November 16, 2019

Ore. SC allows claim for loss of chance at recovery in med-mal case

By Dee Thompson | May 16, 2017

Medical malpractice 02

EUGENE, Ore. (Legal Newsline) – The Supreme Court of Oregon ruled on May 11 that it would reverse a decision by a court of appeals in a medical malpractice case involving the “loss of chance” legal theory. 

The plaintiff is allowed to recover for emotional and physical damages. In 2015, Joseph L. Smith filed suit against Providence Health & Services, doing business as Providence Hood River Memorial Hospital; Linda L. DeSitter, M.D.; Michael R. Harris, M.D.; Hood River Emergency Physicians LLC; Hood River Medical Group PC; and Providence Medical Group.

This medical negligence case arises out of Smith's allegations that his doctors had not treated him properly when he complained of symptoms indicative of having suffered a stroke. He maintained that he could have sought treatment that would have reduced his complications from having a stroke by one-third, and possibly the medication might have prevented a stroke altogether.

The suit states that Smith, 49 at the time, went to the emergency room at Providence Hood River Memorial Hospital on a Friday in June 2011, complaining of symptoms usually indicative of a stroke. As the opinion states, "He arrived in the emergency room less than two hours after he began experiencing visual difficulties, confusion, slurred speech and headache.”

Dr. Linda Dessiter attended him and did a neurological exam and a CT scan, the suit states. Smith was discharged after she allegedly told him his issues were likely caused by a sleep aid, and advised him to get an MRI if symptoms persisted.

The next day, he returned to the ER saying his headache was much worse and he was having problems with his eyes, the suit states. Dessiter allegedly gave him a prescription for Vicodin and told him to see an eye doctor. 

She allegedly didn’t tell him either day to take aspirin. The following Monday, he went to his family practice doctor, Harris, and an MRI was ordered, according to the suit.

When plaintiff got the MRI at the end of that week, there was substantial brain damage from a stroke, the suit states. His injuries caused slurred speech and cognitive impairments that make daily living tasks difficult and prevent him from working, he claims.

Judge Lynn Nakamoto said in her opinion: “On review, the question presented is whether Oregon law permits a plaintiff who has suffered an adverse medical outcome resulting in physical harm to state a common-law medical negligence claim by alleging that the defendant negligently caused a loss of his or her chance at recovery.”

Nakamoto explained further, “We conclude, as a matter of first impression, that a medical negligence claim based on a loss-of-chance theory of injury in the circumstances presented is cognizable under Oregon common law. Accordingly, we reverse and remand for further proceedings.”

The case was appealed from Multnomah County Circuit Court but that ruling was reversed, as was the judgment from the appeals court. The case now goes back to the circuit court.

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