Zehr v. Haugen, 318 Or 647 (1994).
Plaintiffs alleging unwanted pregnancy due to the physician’s failure to perform a tubal ligation stated a claim for medical negligence and breach of contract but not breach of warranty. Plaintiffs’ claim for damages for future costs of raising and educating the child was permissible in both the negligence claim and breach of contract claim.
Holger v. Irish, 316 Or 402 (1993).
Estate of patient brought a claim against a surgeon and hospital based on failure to remove a surgical sponge following surgery. Hospital settled with the plaintiff prior to trial. Plaintiff pursued claim against surgeon based on direct liability and on vicarious liability of hospital employees allegedly under control of the surgeon. Prior to trial, the court instructed the jury, consistent with Uniform Civil Jury Instruction 11.70, that the hospital had settled with the plaintiff but that the jury should not infer anything from the settlement with regard to the issues between the parties. The jury returned a defense verdict. The Oregon Supreme Court reversed, holding it was error to instruct the jury on the settlement by the hospital.
The Supreme Court first ruled that the plaintiff had failed to plead ultimate facts with regard to the vicarious liability claim against the surgeon. In reaching that conclusion, the court noted that pursuant to ORCP 18 A, a plaintiff is required to plead with specificity "in what way" a defendant was negligent. Even assuming the vicarious liability issue was expressly or impliedly tried by consent of the parties, there was no evidence supporting the plaintiff’s theory; it was therefore proper for the trial court not to submit that issue to the jury.
The Supreme Court further held that informing the jury of settlement constitutes reversible error, unless the settlement has independent relevance regarding an issue in the case. OEC 408. The court found the settlement had no independent relevance. NOTE: In subsequent opinions, Oregon appellate courts have consistently failed to find independent relevance regarding evidence of settlement. See, e.g., Foxworth v. Emanuel Hospital et al., 131 Or App 110, 883 P2d 917 (1994), rev den, 320 Or 507 (1995). Since Holger was decided, the Oregon Legislature amended ORS 18.470 in 1995 to allow a jury to assess the fault of a settled defendant, but no Oregon appellate court has yet addressed the impact of the amendments with respect to evidentiary questions regarding evidence of settlement.
Whinston v. Kaiser Foundation Hosp., 309 Or 350 (1990).
Plaintiff’s complaint alleging a mere failure to diagnose chirosis of the liver may have been deficient, but was automatically amended when the issue of the defendant physician’s negligence in failing to perform a work-up was tried without objection. Under ORCP 23(b), a party may amend a pleading to conform to the evidence, thus raising an issue not raised by the pleading. A party may also amend to raise an issue "tried by express or implied consent to the parties." Where an issue not raised by the pleadings is tried without objection, the pleading is automatically amended.
Oregon follows the "we can’t tell rule" where (1) more than one allegation of negligence is submitted to the jury; (2) at least one allegation is not supported by the evidence; and (3) the court cannot determine which allegation the jury’s verdict was based upon. In other words, if the court cannot determine whether the verdict was based on an allegation supported by the evidence or on one unsupported by the evidence, the result is a new trial. A party can invoke this rule only if the party takes action to remove the unsupported allegation from the issues by making a motion to withdraw issues from the jury’s consideration. The Oregon Supreme Court observed that a motion for directed verdict against a party’s entire case is properly denied by the trial court if any allegations is supported by the evidence. A careful practitioner should consider using a special verdict or a general verdict accompanied with interrogatories in order to avoid the application of the "we can’t tell rule," because then the trial and appellate courts would be able to determine if the jury verdict was based on an allegation supported by the evidence.
Cornell v. Merck & Co., 87 Or App 373 (1987).
This was a combined medical negligence and products liability action arising from an injury to the plaintiff’s eyes. The defendant ophthalmologist diagnosed plaintiff with glaucoma and prescribed a drug manufactured by defendant Merck. Trial court granted the defendants’ motion to dismiss on the grounds that the plaintiff’s complaint was barred by the statute of limitations. Plaintiff filed the complaint more than five years after the alleged treatment. Plaintiff argued that his complaint was timely because the defendant had engaged in a course of continuous treatment from the time of misdiagnosis and prescription until he discovered the side effects, or that each diagnosis and prescription was separately actionable. The Court of Appeals upheld the trial court’s dismissal because the complaint did not allege continuing tort, but rather one instance of diagnose and prescription of the drug which was outside the limitations period. The Court of Appeals also affirmed dismissal of the products liability claim because the plaintiff did not allege a defect or failure to warn regarding the product. Plaintiff’s allegation that the product was dangerous was insufficient to state a claim.
Evans v. Salem Hospital, 83 Or App 23 (1986), rev den, 303 Or 331 (1987).
Plaintiff commenced a wrongful death action against the defendant hospital. After the statute of limitations had run, the plaintiff amended the complaint to add the treating physician as a defendant and added a claim against both the physician and the hospital for intentional infliction of emotional distress. The question before the court was whether the claims related back to the date of the original complaint. Absent proof of mistake by the plaintiff, claims against a new party do not relate back to the filing of the original complaint. In order for a new allegation to relate back, there must be enough similarity between the original allegations and the new allegation that a reasonable defendant could discern from the first complaint that the new claim was at least a possibility. In this case, the pleadings did not put the defendant hospital on notice that a claim for intentional infliction of emotional distress might be filed.
O’Gara v. Kaufman, 81 Or App 499 (1986).
Plaintiff’s original complaint, filed in 1984, alleged that the defendant physicians negligently misdiagnosed plaintiff’s tumors and informed her that they were inoperable. The trial court dismissed the plaintiff’s original complaint as barred by the statute of limitations because the plaintiff knew or should have known of her injury when the tumors were surgically removed in 1981 as plead in plaintiff’s complaint. Plaintiff’s amended complaint contained substantially the same allegations but did not allege the 1981 surgery. The defendants again moved to dismiss plaintiff’s complaint arguing that allegations in the original complaint were judicial admissions which were binding on the plaintiff. Trial court erred in dismissing the plaintiff’s amended complaint. A motion to dismiss on the grounds that the pleading was not commenced within the time limit (ORCP 21A(9)) is limited to what appears on the face of the pleading. In considering a motion to dismiss the court looks only to the facts alleged in the amended complaint and not the facts alleged in the superceded original complaint.
St. Paul Fire & Marine Ins. v. Speerstra, 63 Or App 533, rev den, 295 Or 773 (1983).
Insurer brought a legal malpractice claim against the attorneys it hired to defend a hospital in a medical malpractice case. In the medical malpractice case, the trial court did not err in denying the defendant’s motions to strike allegations against hospital. The evidence supported the patient’s allegations that the hospital negligently failed to timely notify the treating physician of the patient’s deteriorating condition, and that the failure to timely notify the doctor was a causative factor contributing to the patient’s injury.
Shaughnessy v. Spray, 55 Or App 42 (1981), rev den, 292 Or 589 (1982).
The subsequent consent of the trial court and the adverse party to the filing of an amended complaint did not validate a premature filing of an amended complaint, where the amended complaint was filed prior to obtaining consent and had been dismissed by the trial court for failure to obtain prior consent pursuant to ORCP 23A.
Coyne v. Cirilli, 45 Or App 177, rev den, 289 Or 155 (1980).
Plaintiff filed an action against her podiatrist for failing to diagnose and treat a foot fracture.
The jury returned a verdict which found the podiatrist 40 percent negligent and the plaintiff 60 percent negligent. Where a defendant has pleaded and presented evidence of a plaintiff's contributory negligence, it is not error for the judge to submit the question of such contributory negligence to the jury.
Wagner v. Kaiser Foundation Hospitals, 285 Or 81 (1979).
Plaintiff allegedly suffered permanent brain damage when he was deprived of oxygen while in a post-surgery recovery room. Plaintiff sued the hospital and a number of providers.
In determining whether to strike an allegation of negligence from the complaint, it is not the function of the trial court to weigh the evidence. If an allegation is supported by any competent evidence, including the testimony of one witness, it is the sole function of the jury to decide whether to believe the testimony of that witness.
Piehl v. The Dalles General Hospital, 280 Or 613 (1977).
Plaintiff brought an action against a surgeon and a hospital alleging negligence for failure to remove a sponge used during surgery from plaintiff’s abdomen. The jury found that both defendants were negligent and the trial court directed a verdict requiring the hospital to indemnify the physician. The issues on appeal relate to indemnity. The trial court erred in directing the verdict against the hospital because there was sufficient evidence that a jury could have found that even though it is not the practice of surgeons to count the number of sponges used during surgery, the surgeon should have discovered something the size of the sponge in the exercise of ordinary care and removed it. The trial court did not err in denying hospital’s motion for directed verdict against the surgeon because the hospital was vicariously liable for the conduct of nurses employed by the hospital who assisted in plaintiff’s surgery. There was testimony that it was the duty of the nurses to count the number of sponges after the surgery.
Hansen v. Bussman, 274 Or 757 (1976).
Trial court did not err in submitting plaintiff’s allegation that her hip dislocation was caused or worsened by the defendant’s failure to diagnose and treat the hypothyroidism. In determining whether to withdraw an allegation from consideration by the jury, it is not the function of the trial court to weigh conflicting evidence. If an allegation is supported by any substantial evidence, including the testimony of one witness, it is the function of the jury to decide whether or not to believe that testimony. The only evidence offered in support of plaintiff’s allegation was the deposition testimony of the defendant which defendant explained or corrected during trial. Defendant argued that the his trial testimony destroyed the probative value of his prior deposition testimony and therefore there was not substantial evidence to support plaintiff’s allegation. Where the previous testimony involved is in the form of an opinion of a party defendant, the trial court should be particularly careful about refusing to permit the previous testimony on the grounds that the defendant has now corrected or explained the opinion.
The trial court did not err in denying defendant’s motion for a directed verdict on the grounds that plaintiff’s damages were speculative. Plaintiff offered evidence that if the defendant had diagnosed plaintiff with hypothyroidism within the first six to 14 months, it was reasonably probable that her mental retardation would not have been as substantial. In cases involving personal injuries, the plaintiff only has to establish that the injuries were the probable result of defendant’s negligence.
Dacus v. Miller, 257 Or 337 (1971).
Trial court did not err in removing a specification of negligence which was included in another specification of negligence.
Orendino v. Clarke, 240 Or 518 (1965).
A complaint sufficiently states a cause of action for medical malpractice if the complaint advises the defendant physician that the patient alleges that the physician negligently examined and treated the patient, and alleges sufficient facts to show the particulars in which the examination and treatment were negligent under the circumstances.
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