Mandell v. Maurer, 150 Or App 543 (1997).
Plaintiff alleged that the defendant failed to inform plaintiff of the risks and side effects of taking an anti-inflammatory medication. Trial court granted the defendant’s motion for summary judgment based on the defendant’s affidavit that his treatment was not a factor in causing the plaintiff’s injury. Court of Appeals reversed.
The trial court erred in granting motion for summary judgment as to causation. The elements of informed consent are (1) that defendant failed to explain (a) in general terms the treatment or procedure, (b) available alternative methods of treatment, and (c) material risks of procedure or treatment; and (2) that the defendant’s failure to obtain informed consent caused injury to plaintiff. The test for determining whether a physician obtained informed consent is subjective. Accordingly, the plaintiff’s affidavit that if he had been informed of the risks and alternatives he would not have taken the medication was sufficient to create a material issue of fact. Defendant’s affidavit that his treatment did not cause the plaintiff’s injuries is insufficient to establish that the defendant is entitled to summary judgment as a matter of law because his affidavit assumed that informed consent had been obtained.
Minisce v. Thompson, 149 Or App 746 (1997).
Trial court granted summary judgment against the plaintiff’s claim for dental malpractice on the grounds that the claim was barred by the two-year statute of limitations in ORS 12.110(4). The Court of Appeals reversed as to the crowns claim because there was a genuine issue of material fact as to when the plaintiff knew or should have known about the injury. The defendant placed plaintiff’s crowns in October 1990, but the plaintiff did not file suit until 1995. In his motion for summary judgment, the defendant relied on the absence of allegations as to why the plaintiff could not bring the complaint within two years of injury. Plaintiff submitted an affidavit that she did not discover her injury until 1994 when another dentist told her of the problem with the crowns. Where the defendant attacks the sufficiency of the complaint via a motion for summary judgment and the plaintiff offers evidence which would justify amending the complaint, the complaint is deemed amended for purposes of the motion.
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 hereditary bleeding disease and died following surgery at the defendant hospital. Defendant moved for summary judgment supported by the affidavit of the treating physician that the care and treatment 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 that defendant’s care and treatment did not meet the standard. The trial court granted summary judgment, and the Court of Appeals reversed.
The Court of Appeals held that a licensed physician who states that 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. Therefore, the plaintiff had created a genuine issue of material fact to defeat the summary judgment motion.
Generally, in a medical malpractice case, an expert is 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.
Sisters of St. Joseph of Peace, Health, and Hosp. Services v. Wyllie, 120 Or App 474 (1993).
Hospital brought suit against a patient to collect fees, and the patient counterclaimed for damages based on alleged medical malpractice and other theories. Plaintiff hospital moved for summary judgment on its claim and against the counterclaims. In opposition to the motion for summary judgment, the defendant patient submitted an affidavit that "I have an expert withness who has a PhD in pharmacology" and a medical doctor licensed in Oregon who will testify that the treatment the patient received did not meet the relevant standard of care. The plaintiff hospital argued that the affidavit was insufficient because the defendant did not testify that he had "retained" a "qualified" expert. ORCP 47E provides that "an affidavit of the party’s attorney stating that an unnamed expert has been retained who is available and willing to testify to admissible facts or opinions creating an issue of fact" is sufficient to defeat a motion for summary judgment where expert testimony is required to create an issue of fact. ORCP 47E does not require any particular words or phrases. Defendant’s affidavit was sufficient to create an issue of fact and defeat plaintiff’s motion.
O’Gara v. Ptacek, 96 Or App 39 (1989).
Plaintiff filed a complaint against her physician for negligence in failing to advise her of the effects of radiation and chemotherapy on vital body organs and in failing to advise of the high degree of risk to her kidneys for administering each dose of chemotherapy. Trial court erred in granting the defendant’s motion for summary judgment on the ground that the claims were barred by the statute of limitations The statute begins to run when the plaintiff knew or should have known "through diligent inquiry, facts from which a reasonable factfinder could conclude that plaintiff’s injury was caused by an act of the defendant that was somehow negligent." The Court of Appeals held that the first time the plaintiff knew or had reason to know that she had a cause of action against the defendant was when she learned of the damage to her internal organs as a result of radiation and chemotherapy.
A defendant physician may offer his or her own expert medical opinion on the applicable standard of care to support a summary judgment motion. Such an affidavit must lay a foundation for the physician’s expertise, personal knowledge of the matters at issue, and a statement that in the physician’s opinion the treatment was consistent with the degree of skill, care and diligence exercised by ordinarily careful physicians performing the same specialty in the same or similar circumstances.
Starr v. Wasner, 93 Or App 48, rev den, 307 Or 246 (1988).
Plaintiff brought a medical malpractice action against physicians, alleging that she suffered permanent visual impairment as a result of taking a drug prescribed by the physicians. Defendant physicians moved for summary judgment based on their own affidavits. An affidavit filed in opposition to a motion for summary judgment pursuant to ORCP 47E need only state that an expert has been retained and is available and willing to testify to admissible facts or opinions that would create a question of fact. The affidavit of plaintiff’s attorney stated that she had retained "a licensed medical practitioner in the State of Oregon who [will] testify to admissible facts and opinions" is sufficient to establish that plaintiff’s had retained a "qualified" expert.
Gannon v. Rogue Valley Medical Center, 92 Or App 314, rev den, 307 Or 145 (1988).
Plaintiff brought a medical malpractice action against a medical center, alleging that she contracted meningitis as a result of a negligently administered myelogram. As a result of the meningitis, plaintiff subsequently suffered chronic organic brain syndrome. Evidence showed that the plaintiff declined to file suit until a connection between plaintiff’s meningitis and organic brain syndrome was discovered. The trial court properly granted the defendant's motion for summary judgment for failure to bring suit within statute of limitations, ORS 12.110(4), because the statute began to run when the plaintiff became aware of the connection between the meningitis and the myelogram, not when the plaintiff discovered that her subsequent chronic organic brain syndrome was related to the meningitis. A plaintiff should discover a claim when plaintiff realizes (1) injury, (2) injury can be attributed to the act of the alleged tortfeasor and (3) the act was somehow negligent.
Moore v. Kaiser Permanente, 91 Or App 262, rev den, 306 Or 661 (1988).
Patient brought a medical malpractice action against physicians and a professional corporation. The defendants moved for summary judgment on the basis of their own affidavits stating that their conduct was not negligent. The plaintiff responded with his own affidavit, stating that his condition was "aggravated" by his return to work, and an affidavit of his attorney, indicating that an expert had been retained and "is available and willing to testify to admissible facts which will create issues of fact as to the diagnoses, standard of care and duty" of the defendants. The trial court erred in granting the defendants' motion for summary judgment. The plaintiff's affidavit raised issues of material fact with respect to causation and damages sufficient to defeat defendants' motion for summary judgment, even though the attorney’s affidavit was insufficient to create an issue of fact as to all elements of plaintiff’s claim.
The purpose of ORCP 47E is to permit an attorney to state in an affidavit that evidence will be provided at trial to create an issue of fact. The rule does not require that the affidavit state on what issues the expert will testify, but only needs to state that an expert has been retained and is available and willing to testify to facts or opinions that would create an issue of fact. If a party chooses to enumerate the elements on which an expert will testify, the enumeration must give notice of all elements on which the expert will testify. The attorney’s affidavit alone was insufficient to defeat the defendants’ motion for summary judgment because it specified that expert would testify as to some, but not all, of the necessary elements.
Allen v. Kaiser Foundation Hospital, Inc., 76 Or App 5 (1985).
The affidavit of plaintiff's medical expert submitted in opposition to defendant’s motion for summary judgment, which merely stated that the defendant was negligent in the particulars alleged in the complaint, was insufficient under ORCP 47D. Plaintiff failed to show that there was a genuine issue of material fact for trial because her expert’s affidavit was conclusory and did nothing more than rest on the allegations in the complaint. Under ORCP 47D, an affidavit must set out specific facts showing there is a genuine issue of material fact for trial.
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 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.
May v. Josephine Memorial Hospital, Inc., 70 Or App 620 (1984), rev den, 298 Or 704 (1985).
Defendants moved for summary judgment relying on the uncontradicted affidavits of the defendant physicians. The affidavit of each defendant physician stated that he was familiar with the applicable standard of care and that, in his opinion, the care and treatment rendered to plaintiff met the standard of care. The Court of Appeals held that when a motion for summary judgment is based on an expert’s uncontradicted opinion, the motion must be denied because a jury could reject the conclusion of the expert. Contra, Tiedemann v. Radiation Therapy Consultants, P.C., 299 Or 238 (1985).
Felske v. Worland, 63 Or App 442 (1983).
Trial Court erred in granting the defendant physician’s motion for summary judgment where the only evidence submitted in support of the motion was the defendant physician’s own deposition testimony denying that he was negligent in the care and treatment of the plaintiff. The defendant did not testify that his care and treatment of plaintiff was consistent with the degree of care, skill and diligence which is used by ordinarily careful physicians in the same or similar circumstances in his or a similar community.
Themins v. Emanuel Lutheran, 54 Or App 901 (1981), rev den, 292 Or 568 (1982).
Plaintiff brought an action against an orthopedic resident and a hospital for negligent care and treatment leading to the amputation of plaintiff’s right foot. The orthopedic resident was an employee of Oregon Health Sciences University and was assigned to the defendant hospital’s emergency room on rotation. Trial court erred in granting the hospital’s motion for summary judgment. A jury could find that the resident was an actual agent of the hospital if he was performing an inherent function of the hospital without which the hospital could not properly achieve its purpose. The jury could also find that the resident was an ostensible agent of the hospital under the Restatement (Second) Agency § 267 because the hospital had undertaken to provide emergency room services to the community and the plaintiff did not have a duty to inquire whether the resident was an employee of the hospital.
Shaughnessy v. Spray, 55 Or App 42 (1981), rev den, 292 Or 589 (1982).
Plaintiff brought a wrongful death action alleging that her son died as a result of an overdose of a medication prescribed by the defendant physician and manufactured by the defendant drug companies. Plaintiff’s original complaint only named the physician as a defendant and alleged medical malpractice. The plaintiff filed a second amended complaint which added the drug companies as defendants and alleged products liability and negligence. Defendant drug companies then moved to dismiss the second amended complaint as barred by the three-year statute of limitations for wrongful death actions. The defendants argued that the wrongful death statute of limitations begins to run at the time of the decedent’s death; therefore, the discovery rule did not apply. The Court of Appeals held that the discovery rule applies to the three-year wrongful death statute of limitations, independently of the statute of limitations which would apply to an action for the underlying injury. But see Eldridge v. Eastmoreland General Hospital, 307 Or 500 (1989) (holding that the discovery rule does not apply to the wrongful death statute). Although the plaintiff was aware of the injury at the time her son died and that her son’s death was due to the prescribed medication, there was an issue of fact as to when the plaintiff knew or should have known of the dangerousness of the medication manufactured by the defendant drug companies.
Harris v. Erickson, 48 Or App 655 (1980).
Plaintiff, a prisoner at the Oregon State Penitentiary, representing himself, sued the State for failing to properly diagnose a rare medical condition. The defendant physician filed a motion for summary judgment supported by his affidavit stating his exam of the plaintiff was consistent with the standard of care. Plaintiff submitted his own affidavit which stated he had the rare condition, defendant had failed to diagnose the condition, and he had been unable to obtain an independent medical consultation because he was a ward of the penitentiary. Plaintiff’s statements in his affidavit were inadmissible because expert testimony was required to establish plaintiff’s medical condition and plaintiff was not medically trained. Under normal circumstances, summary judgment would have been appropriate. Here, however, plaintiff was denied the right to consult with a physician of his own choice and at his own expense by the penitentiary. Summary judgment was improper.
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