Bremner v. Charles, 123 Or App 95 (1993), rev den, 318 Or 381 (1994).
The plaintiff brought a medical malpractice action alleging that her child suffered brain damage as a result of negligent care received during her pregnancy, labor and delivery. The trial court properly excluded the testimony of a nurse offered solely for the purpose of establishing the standard of care for physicians working in the field of prenatal care. Plaintiff argued that the offered testimony was proper under the holding in Creasey v. Hogan, 292 Or 154 (1981). In Creasy, an orthopedic surgeon was allowed to testify as to the standard of care of a podiatrist. Nurses and physicians do not occupy two branches of the healing arts and the principles, techniques, methods, practices or procedures of nurses and physicians do not concur and are not generally the same. The nurse did not testify that she was familiar with the physician’s standard of care.
Burton v. Rogue Valley Medical Center, 122 Or App 22, rev den, 318 Or 24 (1993).
Plaintiff brought a wrongful death action on behalf of his decedent who suffered from a hereditary bleeding disease and died following surgery at the defendant hospital. Defendant moved for summary judgment supporter by the affidavit of the treating physician that the care and treatment he rendered met the standard of care in the community. Plaintiff responded with an affidavit of the decedent’s stepfather, a licensed physician in Oregon and Idaho, who stated he was "very familiar" with the hereditary disease and its treatment because his wife has the disease and defendant’s care and treatment did not meet the standard of care. The trial court granted summary judgment, and the Court of Appeals reversed.
The Court of Appeals held that a licensed physician who states he is very familiar with the medical treatment at issue is competent to render an opinion even if the physician is not a specialist in the particular area. The affidavit testimony demonstrated that the plaintiff’s expert had the necessary skill and knowledge to form an intelligent conclusion about the decedent’s condition and was familiar with the applicable community standard. Plaintiff had created a genuine issue of material fact sufficient to defeat the summary judgment motion.
In a medical malpractice case, an expert is generally required to establish the standard of care because most jurors lack the knowledge required to evaluate a physician’s conduct against the standard of care.
Mosely v. Owens, 108 Or App 685, rev den, 312 Or 527 (1991).
Trial court properly allowed an out-of-state expert for the plaintiff to testify regarding the care and treatment of a specialist in Roseburg, Oregon, even though the plaintiff’s expert conceded he had never been to that community and did not know the exact methods used by physicians there. Court of Appeals held that an expert who is otherwise qualified needs to be familiar with what constitutes proper medical treatment in a community similar to that where care was provided for the expert’s opinion to be admissible. Plaintiff’s expert met that requirement. Therefore, the defendant’s argument regarding lack of familiarity with the methods used by physicians in the community itself merely went to the weight of the testimony, not to its admissibility.
Tiedemann v. Radiation Therapy Consultants, P.C., 299 Or 238 (1985).
Plaintiff brought a claim against the defendant physician alleging that he did not give informed consent because the defendant failed to disclose the material risks involved in radiation therapy. Plaintiff also alleged medical negligence in other particulars. Defendant moved for summary judgment as to all claims, relying on the defendant physician’s affidavit that in her opinion the treatment plaintiff received met the standard of care. Summary judgment is appropriate where there is no genuine issue of material fact.
Where a party is required to provide the opinion of an expert to establish a genuine issue of material fact, a defendant physician’s affidavit may conclusively establish that fact, and must be rebutted by a contradictory affidavit in order to avoid summary judgment on that issue. Expert testimony is generally required to establish the standard of care for medical negligence. In informed consent cases, expert testimony is not required to establish whether the physician informed the plaintiff of (1) the procedure or treatment in general, (2) alternative methods or treatment, and (3) risks to the procedure or treatment. Expert testimony may be necessary to establish the standard of care if the patient requests a further explanation of procedures or treatment. The issue of what additional information should have been given to the patient to secure her informed consent for radiation treatment was a matter requiring expert testimony. Summary judgment against the plaintiff's negligence and lack of informed consent claims was proper. The defendant physician's expert testimony went unrebutted by plaintiff's lay testimony and plaintiff did not offer a contradictory affidavit under ORCP 47E that "an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact," leaving no genuine issue of material fact for trial.
Sullenger v. Setco Northwest, Inc., 74 Or App 345 (1985).
The duty of reasonable care owed by a physician to a patient arises out of the physician-patient relationship only, and does not exist in the absence of such a relationship. In rejecting the plaintiff's argument that a duty arises when a failure to act would foreseeably result in the injury of another, the court stated that "[t]he concept of ‘foreseeability’ is applicable to the measurement of the scope or extent of a duty of care, but it does not determine the existence of such a duty." Thus, the court held that a pediatrician has no duty to treat or render care to a sick child in the absence of a physician-patient relationship.
There is no physician-patient relationship where the treating physician discusses a patient with another physician, where the second physician did not examine patient, review tests or chart notes, declined to manage the patient’s case and the treating physician did not seek an opinion.
Spray v. Board of Medical Examiners, 50 Or App 311, rev den, 291 Or 117 (1981).
Discipline of Physicians
Oregon Board of Medical Examiners revoked the license of a physician after making findings of fact that the physician failed to comply with the standard of care set forth in ORS 677.095. Court of Appeals reversed. ORS 677.095 addresses standards relating to medical malpractice, not license revocations. The Board erred in utilizing and considering ORS 677.095 in its Findings of Fact.
Creasy v. Hogan, 292 Or 154 (1981).
Plaintiff brought a medical malpractice action against a podiatrist who had performed bunion surgery on both of plaintiff’s feet. Trial court correctly allowed expert medical opinion testimony from orthopedic surgeons regarding the podiatrist’s care of plaintiff. Where the principles, techniques, methods, practices or procedures of one medical branch are identical or generally the same as another branch, opinion evidence from a practitioner of one branch is admissible on a point concerning matters in another branch. Medical practitioners are entitled to have their treatment of a patient tested by the principles of the school of medicine to which they belong. Foundation must be laid showing an "appropriate similarity in procedures or techniques" between the two branches.
Expert testimony regarding the witness’s knowledge of the "standard of care" or the "standard of skill" is not proper. Expert witness should testify to his or her knowledge of the methods of customary and proper medical treatment in same or similar community.
Coyne v. Cirilli, 45 Or App 177, rev den, 289 Or 155 (1980).
Plaintiff brought a claim against her podiatrist for failing to diagnose and treat a foot fracture. Where a physician specializes in a medical field, the parties are entitled to the "specialist" instruction. A podiatrist by law is a "foot specialist." The trial court erred in refusing to give the specialist instruction, because a greater degree of skill is required of a specialist.
Getchell v. Mansfield, 260 Or 174 (1971).
Plaintiff brought an action against an orthopedic surgeon for failure to warn plaintiff as to material risks of treatment of her shoulder and failure to advise her of alternative procedures. The duty to warn is established as a matter of law if (1) the risk of injury inherent in the treatment is material; (2) there are feasible alternative courses available; and (3) the plaintiff can be advised of risks and alternatives without detriment to the plaintiff’s well-being. Expert testimony is required to establish some aspects of the standard of care for informed consent but not all. Generally, expert medical testimony is necessary to establish whether a risk is material, the feasibility of alternative methods of treatment or surgery, and whether withholding information on specific risks was for the patient’s well-being. When there is medical testimony establishing these three elements, expert medical testimony is not required establish a duty to disclose such risks. The duty to disclose is a legal issue, not a medical issue.
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