McKechnie v. Stanke, 124 Or App 405 (1993).
Plaintiffs alleged that the defendants’ failed to correctly diagnose and treat the plaintiffs’ son over an eight year period. Trial court granted the defendants’ motion for summary judgment on the portions of plaintiffs’ claim arising out of diagnoses and treatment that occurred more than five years before the filing of plaintiffs’ complaint on the grounds that such claims were barred by the statute of ultimate repose. ORS 12.110(4). Trial court lacks authority to enter final judgment under ORCP 67B for anything less than one claim or a portion of a claim that is dispositive as to at least one party. The Court of Appeals and Supreme Court lack jurisdiction to hear an appeal if not final under ORCP 67B. See Lesch v. DeWitt, 317 Or 585 (1993).
Lesch v DeWitt, 317 Or 585 (1993).
Plaintiff alleged that the defendant negligently prescribed an addictive drug to her for over a period of eight years. Defendant moved to dismiss the complaint as barred under ORS 12.110(4). Trial court dismissed the portions of plaintiff’s claim arising more than five years before filing of the complaint and entered judgment under ORCP 67B. The Supreme Court held that a trial court lacks authority to enter judgment on anything less than one whole claim or a portion of a claim that adjudicates the interests of at least one party. Both the Supreme Court and the Court of Appeals lacked jurisdiction to hear the appeal.
Adams v. Spoelstra, 279 Or 65 (1977).
Plaintiff appeals a jury verdict for the defendant in a medical malpractice case alleging that the defendant osteopath was negligent in failing to diagnose a bladder obstruction. Plaintiff failed to preserve several issues for appeal because the plaintiff failed to make objections during trial or to make an offer of proof. Plaintiff’s offer of the entire deposition of the plaintiff or reading portions of it during closing argument was not timely. The trial court did not err in refusing to given an instruction that physicians must keep up-to-date in their medical knowledge because the instruction was abstract. Where the trial court read all of plaintiff’s allegations of negligence to the jury and explained the standard of care in medical malpractice cases, the trial court did not err in refusing to give instructions on the individual allegations of negligence.
Kam v. Gaughan, 278 Or 165 (1977).
Plaintiffs appealed a jury verdict in favor of the defendant on the grounds that the trial court erred in giving a requested jury instruction. Plaintiffs’ appeal is not entitled to consideration because the plaintiff failed to set forth the instruction given verbatim and the exception taken to the instruction as required by Supreme Court Rules of Procedure 6.18. The Supreme Court will not ordinarily consider an error of instruction in the absence of a proper exception at trial. The record shows that the plaintiff failed to take exception to that instruction at trial.
Holland v. Sisters of St. Joseph, Seeley, 274 Or 757 (1976).
Plaintiff alleged that the defendant failed to obtain the plaintiff’s informed consent to radiation treatment. The trial court erred in giving an instruction on the duty to inform asking the jury to consider what a "reasonably prudent and skillful physician specializing in radiology would have explained." The Supreme Court held that where medical testimony has been introduced showing that the risk is material, the alternatives are feasible, and that disclosure of the risk would not be detrimental to the patient, the duty follows as a matter of law (citing Getchell v. Mansfield, 260 Or 174 (1977)). Error in giving the duty to inform instruction was properly preserved where the plaintiff requested an instruction that correctly stated the law, even though the plaintiff did not point out the error in the instruction given by the trial court.
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