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 material issue of genuine 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 her 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.
Cunningham v. Montgomery, 143 Or App 171, rev den, 324 Or 487 (1996).
Patient brought a medical malpractice action against a dentist, alleging that the dentist negligently administered nitrous oxide causing the patient to suffer hypoxia and cognitive defects. The trial court improperly excluded the testimony of the patient’s expert as to the medical causation of the patient’s injuries on the grounds that the expert, a neuropsychologist, was not a medical doctor. OEC 702 does not require that an expert witness on a medical subject be licensed to practice medicine. A person may be qualified as an expert where that person has specialized training and experience that could assist the jury. The field of specialization of a competent medical witness affects the weight to be given to the testimony, not its admissibility.
Alexander v. Rask, 90 Or App 379, rev den, 306 Or 527 (1988).
Patient brought a medical malpractice action against an oral surgeon alleging that the defendant was negligent in extracting her wisdom teeth. Trial court granted the defendant partial summary judgment as to the punitive damages claim and granted a directed verdict on issues of failure to warn and battery. The jury returned a verdict for defendants on other claims.
Plaintiff argued that the trial court erred in granting a directed verdict on the battery claim because there was evidence to support a verdict that the defendant exceeded the scope of plaintiff’s consent in damaging her lingual nerve. An essential element of battery is intent to cause harm or offensive contact. Trial court did not err because there was no evidence that defendant intended to touch or injure the lingual nerve.
Trial court did not err in giving the duty of medical professional instruction instead of the duty of specialist instruction because it was clear from the instructions that the defendant was to be judged by the community standard for oral surgery. Unless a jury instruction could create an erroneous understanding of the law in the minds of jurors which could affect the outcome of a case, a case should not be reversed on the basis of instructions.
A physician has a duty to warn if (1) the risk of injury inherent in the treatment is material, (2) feasible alternatives exist and (3) plaintiff can be advised of risks without risk to his or her well-being.
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