Oregon Case Law Update: Loss-of-Chance Theory of Recovery Established in Oregon

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Oregon Case Law Update: Loss-of-Chance Theory of Recovery Established in Oregon

From the desk of Ryan McLellan: Normally, a plaintiff in a medical malpractice claim must prove that the medical provider’s breach of duty caused the plaintiff’s injuries. However, a new theory under Oregon law for medical malpractice cases allows a negligence claim against the medical provider even if the chance of a better medical outcome was less than 50%. In this case, the Oregon Supreme Court examined whether to adopt this “loss of chance” theory of recovery as a matter of first impression. Read on to learn more.

Claims Pointer: In this case arising out of a medical malpractice claim, the Supreme Court held that Oregon common law did not preclude the loss-of-chance theory of recovery in medical malpractice cases. For the Court, the loss of chance of a better medical outcome is itself a type of harm. The case conclusively establishes a new theory of liability in some medical malpractice cases, an important consideration for insurers and their attorneys.

Smith v. Providence Health & Services, 361 Or 456 (May 11, 2017)

One afternoon in 2011, Joseph Smith (“Smith”) began experiencing visual difficulties, confusion, slurred speech, and headache. Worried he might be having a stroke, he went to an emergency room (“ER”) operated by Providence Health & Services (“Providence”). The ER physician did not correctly diagnose Smith’s symptoms and discharged him. He returned to the ER the following day with significantly increased symptoms, and the physician again failed to correctly diagnose his condition. It was not until end of the following week that an MRI was obtained, which revealed that Smith had suffered substantial brain damage from a stroke. His stroke-related injuries were permanent and severe. Smith sued the doctors who had attended him, their respective medical groups, and Providence for medical negligence. He alleged that the defendants were negligent for,...

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