Smith v. Providence Health & Servs.-Oregon - 270 Or. App. 325, 347 P.3d 820 (2015)

Rule:

A plaintiff must properly establish causation in a negligence action and, in most medical malpractice cases, the plaintiff must meet the reasonable probability or "but for" standard. That standard requires that, where a failure to act was negligent, there is a reasonable probability that subsequent harm would have been mitigated. That standard is not met where a causal connection between a negligent failure to act and subsequent harm relies on mere speculation. Where a plaintiff's medical expert can only testify to a possibility, and not a probability, that the defendant caused the plaintiff's injury, the trial court should direct a verdict for the defendant. In other words, any showing of causation less than a reasonable probability is merely a possibility and, therefore, insufficient. 

Facts:

This case was filed after the patient suffered a stroke and permanent brain damage. He sought relief from defendants, Providence Hood River Memorial Hospital, Linda Desitter, M.D., Michael Harris, M.D., and Hood River Emergency Physicians, alleging medical negligence based upon a "loss of chance" theory of recovery. Defendants moved to dismiss on the ground that plaintiff had failed to state a claim, because "loss of chance" is not a cognizable claim in Oregon.  The trial court granted the motion. Plaintiff appeals and seeks reversal of the judgment dismissing his complaint.  "In reviewing a ruling allowing a motion to dismiss for failure to state a claim, an appellate court assumes that all well-pleaded facts are true and gives the party opposing the motion the benefit of all reasonable inferences that may be drawn from those facts." Lowe v. Philip Morris USA, Inc., 344 Or 403, 407 n 1, 183 P3d 181 (2008).

Issue:

Did the patient sufficiently allege that there was a reasonable probability that defendants' alleged negligent omissions resulted in his injury?

Answer:

No.

Conclusion:

The court found that the patient's complaint did not suffice to allege that there was a reasonable probability that defendants' alleged negligent omissions resulted in his injury because there were no allegations that defendants' treatment caused the symptoms of his stroke or affirmatively contributed to his condition; the patient's allegation that the treatment he received did not afford him a 33 percent chance of an improved outcome did not assert that it was more likely than not that he would have had a better outcome with prompt and proper treatment for a stroke.