Patients Can Sue for Not Having an Opportunity of Recovery in Oregon

Patients in Oregon can now bring medical malpractice cases not only due to injury but also when the patient is denied treatment which could lead to a better recovery. This ruling came early this week from the Oregon Supreme Court.

Physician groups advise the ruling will result in more lawsuits, higher costs of medical liability insurance, and an increase in the practice of defensive medicine. Although, there was physician concern the trial lawyers said the new ruling would only apply to a small group of cases. The new ruling would provide extra protection to patients.

Stephen Hendricks, a lawyer Portland who represented the plaintiff in the case said, “This gives Oregon consumers of health care more rights.”

The ruling was a result of a malpractice case involving Joseph Smith. Joseph Smith went to the Hood River emergency room with stroke like symptoms in 2011. The Doctors did not order and MRI or prescribe clot- busting drugs and instead discharged him. An MRI confirming a stroke didn’t happen until a week later and due the negligence Smith experienced significant brain damage.

The lawyer representing Smith argued that the failure to take proper care of his client cost him the chance for treatment. Treatment which usually helps 1 in 3 stroke victims recover with minimal side affects. However, the case was dismissed by the Multomah County Circuit Court because “loss of chance” is not considered medical malpractice in Oregon. When Smiths lawyers appealed and courts decision remained they took the case to the Supreme Court.

41 states have already administered on loss of chance according to 2014 reporting. These 41 states allowed the ruling as a base for the negligence the rest had to show more that their injuries  weren’t mostly due to negligence.

Travis Eiva an attorney in Portland wrote an article for the Oregon Trial layers association for the case, “That’s not how people think,” said Travis Eiva, “If we have a 33 percent chance of beating cancer, that’s a valuable thing. In fact, we’ll pay $100,000 for that treatment tomorrow. So it’s something of great value.”

According to the court decision patients are now allowed to seek damages if their doctor doesn’t follow the standard protocol of care and the opportunity is taken away.

“I think most people would agree that if they walked into a hospital and didn’t receive their 1 in 3 chance of saving their life, they would want some accountability for that,” said Eiva.

On Friday afternoon Smith, 49 at the time, was experiencing problems with his vision, speech, and a headache. He was admitted to the emergency room at the Providence Hood River Memorial Hospital.

While at the Hood River Emergency Rom he was seen by Dr. Linda Desitter. The court ruling said Desitter failed to complete a physical exam and the neurological examination was not thorough enough. There was no bleeding on the CT scan but doctors should have used a clot minimizing drug called tPA if they had diagnosed it correctly as a stroke. There was a recommendation for an MRI from the radiologist if Smith’s symptoms persisted.

Instead Desitter dismissed Smith’s symptoms as a result of a sleep aid he had taken, she advised Smith to get his eye sight checked and he was discharged.

Smiths pain returned the following night and he found himself in the emergency room again under the care of Dr. Desitter. Smith complained his symptoms were worse and Dr. Desitter prescribed Vicodin as a remedy for his diagnosed headache.

Smith saw his family physician Dr. Michael Harris at the Hood River Medical Group on Monday and an MRI was finally done but was not made into a priority. Both Doctors Desitter and Harris were sued by Smith for their medical negligence. He argued that because the doctors didn’t take the proper steps concerning his symptoms he was not offered the correct treatment and a chance at a full or partially full recovery.

“This is a significant ruling because it creates a brand-new legal theory of medical liability in Oregon,” said general counsel for the OMA, Mark Bonanno, “Logic dictates that, with an expanded definition of what physicians can be held liable for, we expect to see more litigation. We do not think more litigation is better for patients and our health care system.”

However, Hendricks said he does not expect the ruling to allow trial lawyers to bring that many more cases. The decision is only for a small part where medicine by its own account says, “we don’t know that we can save all people but we can save some so it’s incumbent on us to try to get the best outcome for the most people,” he said. “Since that’s a small subset of medicine, it’s going to be a small subset of any medical malpractice cases.”

A statement provided by Providence Health was released saying they were reviewing the case and preparing for the return of the lawsuit to circuit court. The ruling from the supreme court applies to the issue of whether such cases should go to trial.

At the time of the stroke Smith was a weightlifter and a restaurant manager, he is suing for his lost wages and other damages.

“He’s barely able to hold down a job as a custodian at a church,” said Hendricks. “A regular custodian job was too much for him. He’d mop the floor and go away, and come back to mop the same floor again.”

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