Overview

On April 8, 2015, the Court of Appeals decided in Smith v. Providence Health & Services, 270 Or App 325 (2015), that "loss of chance" does not state a common-law negligence claim under Oregon law. This decision is likely to be appealed to the Oregon Supreme Court.

Plaintiff displayed early stroke symptoms, but was not diagnosed or prescribed aspirin in three medical visits within three days. Plaintiff's condition worsened, and he suffered significant brain damage by the time that the stroke was diagnosed. Plaintiff alleged that the defendant hospital and treating physicians were negligent in failing to adequately examine and diagnose his stroke symptoms, resulting in a lost opportunity for treatment that would have reduced or avoided his damages from the stroke. The Court held that this "loss of chance" theory did not state a claim for relief under Oregon law: to establish negligence, a plaintiff must show that the defendants' negligent treatment caused the injuries at issue; i.e., that the stroke damage would not have occurred absent the negligence.

The take-away for Oregon providers is that this decision holds plaintiffs to a higher standard of causation than the alleged possibility that a plaintiff might have avoided the injuries but for defendant's omissions.

For further information or questions regarding this alert, please contact Kelly Hagan at 503-796-2423 or khagan@schwabe.com.

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