Oregon appeals court limits comparative fault defense in malpractice suits

The Oregon Court of Appeals recently reversed a decision by a lower court to reduce a malpractice award because of the plaintiff’s “comparative fault” in the case. In doing so, the court pronounced a new rule that, “as a matter of law, conduct that merely creates the need for medical treament cannot cause the type of harm at issue in medical malpratice cases — the injury resulting from the malpractice.”

In the case — Son v. Ashland Community Healthcare Services (AHCS) — Sara Burns died while under the medical care of AHCS following an attempted suicide by drug overdose. Her mother, as personal representative of Sara’s estate, brought a wrongful death action against ACHS alleging professional negligence in its treatment of Sara.

ACHS raised the comparative fault defense, alleging that Sara failed to inform ACHS of her ingestion of a particular drug that would have changed ACHS’ treatment plan and likely would have prevented her death. The jury returned a verdict for the plaintiff of $740,000, after which the court reduced the award by a percentage because of Sara’s comparative fault.

Sara’s mother than appealed, and the Oregon Court of Appeals reversed the decision, addressing for the first time the comparative fault defense in the context of medical malpractice cases. The general rule for comparative fault comes from Fazzolari v. Portland School Dist. No. 1J and has been stated as “whether facts of the case indicate that the plaintiff took some action or failed to take some action which a reasonable person could have foreseen would increase the risk of harm to the plaintiff, and that the plaintiff did indeed suffer harm of the type which could have been foreseen.”

The appeals court narrowed the rule in medical malpractice cases to the injury caused by the negligent treatment, not the original injury that necessitated the need for treatment. Here, the court found that Sara’s negligent conduct occured prior to ACHS’ negligent treatment and was therefore not eligible to be considered as comparative fault.

The distinction is important in many malpractice cases, not just those involving suicide attempts. For example, this decision puts off-limits in a lung cancer misdiagnosis case any defense that the patient was partly at fault for being a smoker. But if the same patient neglected to follow the doctor’s advice to return for a followup visit, that could potentially count against the patient.

Source: Oregon Business Report

You can view the full text of the decision here.

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