Oregon Supreme Court expands patients’ rights in recent case

The highest court in Oregon took on a case questioning whether the state should allow the loss-of-chance theory of negligence in medical malpractice cases.

The highest court in Oregon was asked to hear a case questioning whether a patient could hold medical professionals responsible based on the loss-of-chance theory of injury.

What is the loss-of-chance theory of responsibility? This legal theory is one that falls within the broader legal niche of negligence.

In negligence claims, the injured party must essentially establish that the party that caused the harm had a duty to help the victim, failed to meet this duty, the failure resulted in injury and the injury caused damage. When applying the loss-of-chance theory the victim is not claiming that the responsible party directly caused the damage, but that the failure to properly meet his or her duty resulted in the inability to seek treatment that may have reduced the risk of damage. This is distinct from other theories because the chance of reduced risk of damage is just that, a chance. It is not an established form of treatment that would definitively reduce the injury to the patient.

Many states have accepted this theory, at least in part. This is the first time Oregon courts have considered application of the theory.

What happened in this case? This case involved a 49 year-old man that sought emergency medical attention at a local hospital. His symptoms included visual difficulties, confusion, slurred speech and a headache. He sought medical attention within two hours of the onset of these symptoms and voiced concern that he may be suffering from a stroke. The emergency department failed to perform a physical or neurological examination. A CT scan was ordered, and the radiologist who read the scan recommended further testing if the symptoms persisted. The patient was told to get his eyes checked and was discharged.

The next evening, the patient returned to the emergency department. He stated his symptoms had increased in severity. The same emergency department physician was working and was assigned to this patient. She again failed to perform a physical or neurological exam. She stated he was suffering from a headache and prescribed Vicodin.

The next day, the patient attended a follow-up with a family practice physician who ordered an MRI. The MRI was not conducted until the end of the week, almost a full week after the patient first presented with his symptoms to the hospital. The MRI showed substantial brain damage resulting from a stroke.

What is the patient's argument? Due to the lack of bleeding on the brain noted during the initial CT scan, this patient would have qualified for TPA treatment for a stroke upon his first visit. This type of treatment generally has a one in three chance of reduced permanent damage. The patient argues that the physician's failure to diagnose the stroke resulted in a lost opportunity to move forward with this treatment.

What did the court decide? Ultimately, the court stated that "a loss of a substantial chance of a better medical outcome can be a cognizable injury" in Oregon. As such, the case is sent back to court for further review.

What does this mean for future medical malpractice cases? This holding establishes that Oregon will likely allow claims based on the loss-of-chance theory to move forward. This can provide another valuable tool for victims of medical malpractice to seek justice for their injuries.