Injured Oregonians may claim “lost chance” of better medical outcome.

Smith v. Providence Health and Services, 361 Or 456 (2017)

The Facts

Joseph Smith went to the emergency room at Providence Hood River Hospital on a Friday afternoon complaining of a headache, blurred vision and slurred speech. He worried he might be having a stroke. The doctor there did an incomplete examination and sent him home. Mr. Smith returned on Saturday night with the same complaints getting worse, but the doctor only gave him Vicodin and sent him home again. It wasn’t until the end of the following week that an MRI was finally done, and it showed that Mr. Smith had had a stroke and suffered substantial brain damage. Mr. Smith sued the doctors and the hospital for failing to do the necessary examinations, including an MRI, to reveal that he was having a stroke a week earlier.

Lost Chance of a Better Outcome

Mr. Smith offered to prove that the treatment for stroke – tissue plasminogen activator (TPA), which breaks up blood clots – would have had a 33% chance of preventing his stroke or making it much less harmful, if the stroke had been discovered and treated promptly. The hospital argued that proving a 33% chance does not make a case because an injured Oregonian must prove it is “more likely than not” that he would not have been harmed if the doctors had not been negligent in diagnosing his stroke. The Oregon Supreme Court ruled that Mr. Smith could recover for his loss of a 33% chance of a better outcome.

In a previous case, Joshi v. Providence Health System, the Court had ruled that a patient who died of a stroke and would have had a 30% chance of surviving had he been properly diagnosed, had no claim because his family could not prove it “more likely than not” that he would have survived with proper treatment. That was because Mr. Joshi’s case was brought under the Oregon wrongful death law, which specifically states that the family of one who dies because of negligence may sue for the “death” of their loved one. ln Mr. Smith’s case, however, the Court noted that it was the negligence of the doctors itself that made it impossible for Mr. Smith to prove what would have happened if there had been no negligence. It was therefore only fair to allow him to recover damages for the loss of a 33% chance of a better outcome. It is also true, in medical malpractice cases, that statistical evidence of the likelihood of better outcomes with certain treatments is often available.

Mr. Smith, however, did not claim the negligent doctors had caused his stroke. He claimed they had caused him to lose the 33% chance of a better outcome that proper treatment would have provided. He didn’t argue that the doctors had “more likely than not” caused his stroke. He did claim that “more likely than not”, their negligence cost him a 33% chance of a better result. The Court adopted this “loss of chance” theory, joining the majority of American state courts.