456 May 11, 2017 No. 28
IN THE SUPREME COURT OF THE
STATE OF OREGON
Joseph L. SMITH,
Petitioner on Review,
v.
PROVIDENCE HEALTH & SERVICES - OREGON,
dba Providence Hood River Memorial Hospital,
dba Providence Medical Group;
Linda L. Desitter, MD;
Michael R. Harris, MD;
Hood River Emergency Physicians, LLC;
and Hood River Medical Group, PC;
Respondents on Review,
and
PROVIDENCE MEDICAL GROUP,
fka Hood River Medical Group, PC;
and Hood River Medical Group, PC,
Defendants.
(CC 130202067; CA A155336; SC S063358)
On review from the Court of Appeals.*
Argued and submitted March 4, 2016, at Willamette
University College of Law, Salem, Oregon.
Stephen C. Hendricks, Hendricks Law Firm, PC,
Portland, argued the cause and filed the brief for petitioner
on review.
George S. Pitcher, Lewis Brisbois Bisgaard & Smith
LLP, Portland, argued the cause and filed the brief for respon-
dent on review Providence Health & Services - Oregon. Also
on the brief was Rachel A. Robinson.
Lindsey H. Hughes, Keating Jones Hughes, PC, Portland,
argued the cause and filed the brief for respondents on review
Michael R. Harris, MD, and Hood River Medical Group, PC.
Also on the brief was Hillary A. Taylor.
______________
* Appeal from Multnomah County Circuit Court, Nan G. Waller, Judge. 270
Or App 325, 347 P3d 820 (2015).
Cite as 361 Or 456 (2017) 457
Jay Beattie, Lindsay Hart, LLP, Portland, argued the
cause and filed the brief for respondents on review Linda L.
Desitter, MD, and Hood River Emergency Physicians.
Roy Pulvers, Holland & Knight LLP, Portland, filed
the brief for amici curiae Oregon Medical Association and
American Medical Association.
Travis Eiva, Eugene, filed the brief for amicus curiae
Oregon Trial Lawyers Association. Also on the brief was
Dan Bartz.
Michael T. Stone, Brisbee & Stockton LLC, Hillsboro,
filed the brief for amicus curiae Oregon Association of
Defense Counsel.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, Nakamoto, and Flynn, Justices.**
NAKAMOTO, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Case Summary: Plaintiff went to the emergency room of defendant hospi-
tal shortly after experiencing symptoms of a stroke. The emergency room physi-
cian failed to correctly diagnose plaintiff’s symptoms and discharged plaintiff.
Plaintiff returned again the following day with significantly increased stroke
symptoms, and the physician again failed to correctly diagnose his condition.
Plaintiff’s condition was not correctly diagnosed until the following week, at
which point he had suffered substantial brain damage. Plaintiff sued the hospital
and physicians involved, alleging a loss-of-chance medical negligence claim. The
theory of his claim was that, as a result of defendants’ negligence, plaintiff had
lost a chance for treatment that, 33 percent of the time, provides a stroke victim
with a much better medical outcome, with few or no lasting symptoms. The trial
court granted defendants’ motion to dismiss on the ground that Oregon common
law did not permit recovery based on a loss-of-chance theory, and the Court of
Appeals affirmed. Held: As a matter of first impression, Oregon common law does
not preclude the loss-of-chance theory of recovery in medical malpractice cases.
The theory, as advanced by plaintiff, does not require a relaxation of causation
standards. Rather, loss of chance of a better medical outcome is, in itself, a type
of harm.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
______________
** Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case.
458 Smith v. Providence Health & Services
NAKAMOTO, J.
After suffering permanent brain damage from a
stroke, plaintiff Joseph Smith brought this medical negli-
gence action, alleging that, because doctors had not taken
proper steps to follow up on his complaints of stroke symp-
toms, he lost a chance for treatment that, in one-third of
cases, provides a patient with no or reduced complications
following the stroke. Reviewing the complaint on its face,
the trial court agreed with defendants that plaintiff had
failed to state a claim under Oregon law. The court entered
a judgment dismissing the complaint with prejudice, which
the Court of Appeals affirmed. Smith v. Providence Health &
Services - Oregon, 270 Or App 325, 347 P3d 820 (2015). On
review, the question presented is whether Oregon law per-
mits a plaintiff who has suffered an adverse medical outcome
resulting in physical harm to state a common-law medical
negligence claim by alleging that the defendant negligently
caused a loss of his or her chance at recovery. As explained
below, we conclude, as a matter of first impression, that a
medical negligence claim based on a loss-of-chance theory
of injury in the circumstances presented is cognizable under
Oregon common law. Accordingly, we reverse and remand
for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Because the trial court dismissed the action at the
pleading stage, we describe the facts by assuming the truth
of facts that plaintiff alleged in his complaint and by giving
him the benefit of reasonable inferences from those facts.
Lowe v. Philip Morris USA, Inc., 344 Or 403, 407 n 1, 183
P3d 181 (2008). On a Friday afternoon in 2011, plaintiff,
then 49 years old, went to the emergency room at Providence
Hood River Memorial Hospital, which defendant Providence
Health & Services - Oregon operated. He arrived in the
emergency room less than two hours after he began expe-
riencing visual difficulties, confusion, slurred speech, and
headache. Plaintiff was worried that he might be having a
stroke.
Defendant Dessiter, a physician affiliated with
defendant Hood River Emergency Physicians, LLC, attended
plaintiff in the emergency room. Dessiter did not perform
Cite as 361 Or 456 (2017) 459
a complete physical examination or thorough neurological
examination of plaintiff. Plaintiff underwent a CT scan,
which showed no bleeding in his brain, making him a can-
didate for “TPA treatment of a stroke.”1 A radiologist recom-
mended that, if symptoms persisted, an MRI should be con-
sidered. Dessiter concluded that plaintiff’s symptoms were
caused by taking a sleep aid, told him he needed to have his
eyes examined, and discharged him. She did not advise him
to take aspirin.
On Saturday night, when Dessiter was again work-
ing, plaintiff returned to the Providence emergency room.
Plaintiff reported that the pain in his head had significantly
increased and he was still having visual problems. Again,
Dessiter did not perform a complete physical examination
and did not perform a thorough neurological examination.
She diagnosed plaintiff with a mild headache and visual
disturbance and gave him a prescription for Vicodin. She
again advised him to see an eye doctor. She did not advise
plaintiff to take aspirin.
On Monday, plaintiff attended a follow-up appoint-
ment with defendant Harris, a family practice physician
affiliated with defendant Hood River Medical Group, PC.
Harris ordered an MRI, but not on an expedited basis. He
did not advise plaintiff to take aspirin.
When an MRI was done at the end of the week, it
showed that plaintiff had suffered substantial brain dam-
age from a stroke. Plaintiff’s stroke-related injuries are per-
manent. Among other things, he now has slurred speech,
limitations on his ability to perform activities of daily living,
and cognitive impairments that prevent him from working.
Plaintiff sued the doctors who had attended him,
their respective medical groups, and Providence for medi-
cal negligence, alleging a loss-of-chance negligence theory.
In his second amended complaint, plaintiff alleged that
Providence and Dessiter were negligent in failing to conduct
1
The abbreviation TPA stands for tissue plasminogen activator. Stedman’s
Medical Dictionary 1850 (27th ed 2000). TPA “is a thrombolytic agent that helps
to break apart blood clots.” Joshi v. Providence Health System, 342 Or 152, 156,
149 P3d 1164 (2006).
460 Smith v. Providence Health & Services
thorough physical and neurological examinations, to order
an MRI, to start plaintiff on aspirin, and to take various
other actions. Plaintiff alleged that Providence and Harris
were negligent in failing to order an MRI on an expedited
basis and to start plaintiff on aspirin. Plaintiff then alleged
that, “[a]s a result of the negligence of [Providence, Dessiter,
and Harris], on a more probable than not basis, [plaintiff]
lost a chance for treatment which, 33 percent of the time,
provides a much better outcome, with reduced or no stroke
symptoms.”2 Plaintiff further alleged that, “[a]s a result of
defendants’ negligence and his injuries,” he “lost his abil-
ity to work” and “has serious and permanent injuries.” He
requested damages “for lost wages or impairment of earning
capacity” and “non-economic damages.”
In a professional negligence claim, a plaintiff must
allege and prove the following: “(1) a duty that runs from
the defendant to the plaintiff; (2) a breach of that duty; (3) a
resulting harm to the plaintiff measurable in damages; and
(4) causation, i.e., a causal link between the breach of duty
and the harm.” Zehr v. Haugen, 318 Or 647, 653-54, 871 P2d
1006 (1994). Ultimately, the plaintiff must prove causation
by a “reasonable probability.” Sims v. Dixon, 224 Or 45, 48,
355 P2d 478 (1960).
Dessiter and her medical group, Harris and his med-
ical group, and Providence filed motions to dismiss plain-
tiff’s complaint under ORCP 21 A(8). All defendants argued
that plaintiff had failed to allege ultimate facts sufficient
to constitute a claim on two grounds. First, they argued,
plaintiff had not alleged a recognized harm because Oregon
law does not permit recovery for loss of chance. Defendants
asserted that this court had rejected the loss-of-chance the-
ory in Joshi v. Providence Health System, 342 Or 152, 149
P3d 1164 (2006), a statutory wrongful death case in which
the personal representative of a patient alleged that health
care providers had failed to diagnose the patient’s stroke,
leading to his death. Id. at 155. Second, defendants argued
that plaintiff’s negligence theory, if recognized in Oregon,
2
Plaintiff’s complaint contains two identical allegations that “Providence
and Dessiter” caused the loss of the chance, but the parties have treated the sec-
ond instance as an allegation that Harris caused plaintiff to lose the chance.
Cite as 361 Or 456 (2017) 461
would subvert the requirement that a plaintiff in a medical
malpractice case must plead and prove a causal connection
between the defendant’s breach of duty and the plaintiff’s
injuries.
The trial court granted defendants’ motions to dis-
miss but allowed plaintiff 10 days in which to replead the
complaint. When plaintiff failed to amend his complaint, the
trial court entered a general judgment dismissing the action
with prejudice.
Before the Court of Appeals, the parties again dis-
puted whether loss of chance had been rejected or recognized
as a negligence theory in Oregon and whether plaintiff’s the-
ory conflicted with pleading requirements for the element of
causation in a professional negligence claim. Citing Harris
v. Kissling, 80 Or App 5, 721 P2d 838 (1986), and distin-
guishing Joshi, plaintiff argued that Oregon recognizes loss
of chance “in medical negligence actions for injuries” and
that many other states allow claims for loss of chance.
The Court of Appeals resolved plaintiff’s appeal
based on both this court’s decision in Joshi and plaintiff’s
allegations concerning causation. In a footnote, the Court of
Appeals declined plaintiff’s invitation to conclude that the
loss of a chance for an often-effective treatment and recovery
is the cognizable harm caused by a negligent failure to act.
Smith, 224 Or App at 329 & n 3. Instead, the court viewed
plaintiff’s injury as his stroke-related brain damage and
determined that the causation requirement for the wrongful
death statute in Joshi was the same requirement demanded
by the common law for causation in a medical negligence
claim. Smith, 270 Or App at 331-32. The court concluded
that plaintiff’s allegation that he lost a 33 percent chance
for a better outcome was insufficient to allege that “there is
a reasonable probability that defendants’ alleged negligent
omissions resulted in his injury.” Id. at 332. Accordingly, the
court affirmed. Id.
Plaintiff sought review, arguing, in part, that the
Court of Appeals erroneously had rejected loss of chance
as a separate compensable injury, which then led the court
to conduct an off-kilter analysis of causation. We granted
review to decide whether Oregon law permits plaintiff, who
462 Smith v. Providence Health & Services
has suffered physical harm, to state a common-law medi-
cal negligence claim by alleging that defendants negligently
caused the loss of his 33 percent chance at recovery from his
stroke.
II. ANALYSIS
A. Preservation
Before reaching the parties’ substantive arguments,
we address defendants’ contention that plaintiff failed to
adequately preserve his argument that the loss of a 50 per-
cent or lesser chance for medical recovery is a discrete, com-
pensable harm. Defendants’ arguments, which have mor-
phed over time, are unavailing.
Defendants first raised concerns about preserva-
tion before this court, when opposing plaintiff’s petition
for review. At that point, defendants acknowledged that, in
the trial court, plaintiff had argued in favor of recognizing
loss of chance as an injury. Even so, defendants contended,
plaintiff’s reference to Dickhoff ex rel Dickhoff v. Green,
836 NW2d 321, 329-30 (Minn 2013) (approving the loss-of-
chance theory), was too “skimpy and opaque.”
Defendants since appear to have pushed that argu-
ment to the sidelines, and rightly so. The question whether
an argument has been preserved “inevitably will turn on
whether, given the particular record of a case, the court
concludes that the policies underlying the [preservation]
rule have been sufficiently served.” State v. Parkins, 346 Or
333, 341, 211 P3d 262 (2009). This court has also explained
that two major policies underlie the rule of preservation:
judicial efficiency and fairness. Peeples v. Lampert, 345 Or
209, 219-20, 191 P3d 637 (2008). Those preservation poli-
cies were served in this case: First, in his complaint, plain-
tiff expressly alleged that he lost his chance for recovery.
Second, in opposing defendants’ Rule 21 motions, plaintiff
argued (among other things) that “the loss of his chance for
a better outcome is absolutely an injury to his person” and
asked the trial court “to allow him to present that harm to a
jury.”
More recently, in their brief before this court, defen-
dants assert that the issue whether the loss of the chance
Cite as 361 Or 456 (2017) 463
for recovery is a compensable injury was not before the trial
court, because plaintiff had failed to clearly allege a com-
pensable injury. As defendants view it, the complaint had
to, but did not, contain the proper allegation of damages,
namely, damages for emotional or psychic injury experienced
because of losing a chance of recovery. Instead, defendants
assert, the only claim plaintiff presented was one for “physi-
cal injury damages.” Although their argument sounds like a
challenge to the adequacy of plaintiff’s pleading, defendants
characterize it as a preservation argument. Regardless of
whether we agree, that position is not well taken.
First, defendants’ position depends on two faulty
premises: (1) the only possible kind of damage that a plain-
tiff who proves a loss of chance can assert is damage due to
emotional or psychic injury and (2) plaintiff did not allege
a right to recover those sorts of noneconomic damages. As
we discuss later, courts have allowed other damage theo-
ries under the auspices of a loss-of-chance theory. And, even
were defendants correct that only noneconomic damages
are cognizable upon proof of a defendant’s liability for a loss
of chance, plaintiff alleged that he had suffered a specific
amount of “non-economic damages.” Moreover, defendants’
position presumes that the trial court dismissed based on
the nuts and bolts of the pleading, yet the court dismissed
the action because it rejected the very idea that a loss-of-
chance theory of recovery was available in Oregon. Thus,
the availability of loss of chance as a theory of recovery was
squarely before the trial court and the Court of Appeals and
is preserved for our review.
B. An Issue of First Impression
Throughout the litigation, the parties have dis-
puted whether, in Joshi, this court already resolved the
question whether a loss of chance is cognizable under
Oregon law, and so we begin by clarifying the matter.
Plaintiff is correct that we have not yet decided whether an
injured plaintiff alleging common-law medical malpractice
may recover for loss of a chance at a better medical out-
come. The feature distinguishing Joshi from this case is
the wrongful death statute, ORS 30.020, which was at the
heart of that case.
464 Smith v. Providence Health & Services
In Joshi, the plaintiff brought a wrongful death
action against multiple health care providers, alleging that
they had failed to timely diagnose and treat her husband’s
stroke with medications and that their negligence led to his
death. 342 Or at 155. The trial court directed a verdict in
favor of the defendants when the plaintiff’s medical expert
testified that timely administration of the medications would
have increased the decedent’s chance of survival by, at most,
30 percent. Id. at 156. One of the questions on review before
this court was whether the expert’s testimony had created a
jury question as to causation. Id. at 157.
Our decision turned on the provision in ORS 30.020
that a wrongful death action can be maintained if “the
death of a person is caused by the wrongful act or omission
of another.” (Emphasis added.) After examining the text
and context of the wrongful death statute, this court held in
Joshi that the statute “requires that a plaintiff prove that a
defendant’s negligent act or omission caused the decedent’s
death,” id. at 163 (emphasis in original), not an increase in
the risk of death, id. at 164. Because the expert could tes-
tify only that defendants’ conduct had increased the risk of
death but not that, to a reasonable probability, defendants’
conduct had caused the death, the court concluded that the
plaintiff had failed to adduce evidence to establish an ele-
ment of her claim. Id. at 164. As we noted, “[a]lthough depri-
vation of a 30 percent chance of survival may constitute an
injury, the injury that is compensable under ORS 30.020 is
death.” 342 Or at 164 (emphasis added). In contrast, this
case is not bound by a statute that requires that plaintiff
prove that defendants caused a specific injury. Rather, the
issue presented concerns a claim for medical negligence
under Oregon’s common law.
In the present case, plaintiff argues that loss of
chance is not an aspect of causation, but rather is a distinct
type of injury or harm, and one that numerous jurisdictions
have recognized in common-law negligence cases involving
medical malpractice. The Court of Appeals rejected that
argument without discussion, Smith, 270 Or App at 329
n 3, citing Lowe and Howerton v. Pfaff, 246 Or 341, 347, 425
P2d 533 (1967). Neither of those cases, however, addressed
whether loss of chance of a better medical outcome in the
Cite as 361 Or 456 (2017) 465
context of a medical malpractice claim could constitute a
harm or injury under Oregon common law.
In Lowe, the alleged injury was the plaintiff’s
increased risk of developing lung cancer from having con-
sumed the defendant’s cigarette products. 344 Or at 407.
The plaintiff did not allege physical harm or seek emotional
distress damages; she sought to recover the costs of periodic
medical screening for cancer. Id. at 409. One of the issues
presented was “whether a significantly increased risk of
future physical injury is a sufficient harm to state a negli-
gence claim.” Id. Following established precedent, this court
concluded that a threat of future physical harm is not, in
itself, actionable. Id. at 410.
In rejecting the plaintiff’s argument that the issue
was similar to the loss-of-chance issue left open in Joshi,
the Lowe court made a passing statement that the Court of
Appeals understood as foreclosing plaintiff’s lost-chance-as-
injury theory in this case. Specifically, in Lowe, this court
first described the issue left open in Joshi as whether “depri-
vation of a 30 percent chance of survival may constitute an
injury” outside the context of the wrongful death statute,
and then as “whether ‘deprivation of a 30 percent chance of
survival’ would be sufficient proof of causation if the plain-
tiff suffered an injury that did not lead to death.” Lowe, 344
Or at 413 (quoting Joshi, 342 Or at 164) (emphasis added).
This court then added that that statement in Joshi “goes
to the causal connection necessary to prove negligence, not
the type of injury necessary to state a negligence claim.”
Lowe, 344 Or at 413. The Court of Appeals appears to have
understood Lowe as signaling that a lost chance must be
understood in terms of causation.
However, this court did not tacitly conclude in Lowe
that all loss-of-chance theories must be considered as the-
ories of causation rather than injury. Rather, as the Lowe
court more precisely said, the “only question” in Joshi was
“whether the evidence was sufficient, for the purpose of the
wrongful death act, to find the necessary causal connec-
tion between the defendant’s negligence and the patient’s
death.” Lowe, 344 Or at 413. In other words, in Joshi, we
decided a causation issue that arose by virtue of the injury
466 Smith v. Providence Health & Services
specified in the wrongful death statute, but we left open
whether deprivation of a chance of survival could, in fact,
constitute an “injury,” or satisfy causation requirements, in
other contexts. See Joshi, 342 Or at 164 (“Although depri-
vation of a 30 percent chance of survival may constitute an
injury, the injury that is compensable under ORS 30.020 is
death.”).
Nor did this court reject a loss-of-chance theory
of medical malpractice in Howerton. That case concerned
whether the plaintiff’s health problem was caused by an
automobile accident. The plaintiff had been treated for neck
strain near the time of the accident, and then consider-
ably later sought treatment for a hernia in his groin. 246
Or at 343. This court concluded that the plaintiff had not
adduced sufficient proof of causation, given his physician’s
testimony that it was a mere “possibility” that the hernia
was a result of the accident and noting that a possibility was
not the same as probability. Id. at 346. That case stands for
the unremarkable proposition that causation must be estab-
lished with probability or reasonable certainty. It provides
no support for a conclusion that loss of chance of a better
medical outcome has been rejected as a theory of injury for a
medical malpractice claim under Oregon common law. Thus,
we are presented with an issue of first impression in our
court.
C. Loss of Chance in Common-Law Medical Negligence
Claims
The present case concerns whether the loss-of-
chance theory of injury should be cognizable in the context
of common-law negligence claims of medical malpractice in
Oregon. The loss-of-chance theory is responsive to cases like
this one, in which defendants undertook care of plaintiff
when he presented with symptoms of stroke, they breached
the duty to plaintiff by performing below the standard of
care, plaintiff suffered brain damage, and defendants
caused him to lose a 33 percent chance at recovering from
the stroke, i.e., plaintiff does not allege (and cannot prove)
that defendants caused his brain damage given that his
chance of recovery with proper treatment was not greater
than 50 percent.
Cite as 361 Or 456 (2017) 467
Loss of chance as a theory of recovery for negli-
gence, and in particular for medical malpractice, has gained
traction in the last half-century. At this point, courts in
most states have reached the issue, and more than half of
the jurisdictions in the United States that have considered
the issue have embraced the theory, at least to some extent.
See Lauren Guest, David Schap, and Thi Tran, The “Loss of
Chance” Rule as a Special Category of Damages in Medical
Malpractice: A State-by-State Analysis, 21 J Legal Econ 53,
58-60 (2015) (reviewing case law as of 2014 and concluding
that 41 states had addressed loss of chance, with 24 states
having adopted some version of the theory); Steven L. Koch,
Whose Loss is it Anyway? Effects of the “Lost Chance” Doctrine
on Civil Litigation and Medical Malpractice Insurance, 88
NC L Rev 595, 606-09 (2010) (citing cases). We review the
development of the loss-of-chance theory in medical malprac-
tice actions to provide context for our analysis of whether
and how plaintiff may use that theory.
An early iteration of the basis for the loss-of-chance
theory, and one that is widely cited, is found in Hicks v.
United States, 368 F2d 626 (4th Cir 1966). That case, which
involved a negligent failure to diagnose a condition that led
to the death of the patient, applied Virginia law. In reject-
ing the defendant’s lack-of-causation argument, the court
explained that a negligent doctor must answer for a patient’s
lost chance of survival:
“When a defendant’s negligent action or inaction has
effectively terminated a person’s chance of survival, it does
not lie in the defendant’s mouth to raise conjectures as to
the measure of the chances that he has put beyond the pos-
sibility of realization. If there was any substantial possi-
bility of survival and the defendant has destroyed it, he is
answerable. Rarely is it possible to demonstrate to an abso-
lute certainty what would have happened in circumstances
that the wrongdoer did not allow to come to pass. The law
does not in the existing circumstances require the plaintiff
to show to a certainty that the patient would have lived had
she been hospitalized and operated on promptly.”
Id. at 632. Although Hicks, unlike classic loss-of-chance
cases discussed below, did not actually involve proof of less
than a 51 percent chance that the correct diagnosis would
468 Smith v. Providence Health & Services
have led to a better medical outcome, id., it nonetheless
has come to be cited for the proposition that traditional
notions of “more likely than not” causation pose a problem-
atic barrier to recovery by patients who have experienced
poor medical outcomes due to a doctor’s failure to diagnose
and that other theories of recovery may be viable in that
context.
One of the earliest cases that explicitly recognized
loss of chance as a distinct theory of recovery in medical
malpractice was Hamil v. Bashline, 481 Pa 256, 392 A2d
1280 (1978). In that case, the plaintiff put on expert testi-
mony that the decedent had a 75 percent chance of surviv-
ing his heart attack with proper treatment, which the defen-
dant countered with evidence that the decedent’s death was
imminent, regardless of treatment. The trial court directed
a verdict in the defendant’s favor after concluding that the
plaintiff had failed to establish that the defendant’s proven
negligence was the proximate cause of the death. Id. at 263,
392 A2d at 1283.
On appeal, the Pennsylvania Supreme Court ana-
lyzed the question in terms of the quantum of proof neces-
sary to establish causation, like some other courts address-
ing loss of chance, particularly earlier in the development
of the doctrine. Relying on the rationale from Hicks as well
as Section 323(a) of the Restatement (Second) of Torts,3 the
Pennsylvania Supreme Court described the loss-of-chance
theory as allowing “the issue to go to the jury upon a less
than normal threshold of proof.” Hamil, 481 Pa at 271, 392
A2d at 1287-88. The court therefore held that such a claim
could go forward if there was evidence that the “increased
3
Section 323, entitled “Negligent Performance of Undertaking to Render
Services,” provides:
“One who undertakes, gratuitously or for consideration, to render ser-
vices to another which he should recognize as necessary for the protection
of the other’s person or things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable care to perform his
undertaking, if
“(a) his failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the
undertaking.”
(Emphasis added.)
Cite as 361 Or 456 (2017) 469
risk” was a “substantial factor in bringing about the result-
ing harm.” Id. at 272, 192 A2d at 1288.
A small number of courts in other jurisdictions—
for example, Delaney v. Cade, 255 Kan 199, 218, 873 P2d
175, 187 (1994), and McKellips v. Saint Francis Hosp., Inc.,
741 P2d 467, 475 (Okla 1987)—have similarly characterized
loss-of chance theories of recovery in the medical malprac-
tice context as involving a relaxation of the causation stan-
dard. Those jurisdictions use a test for the causal connection
between the patient’s ultimate physical harm and the doc-
tor’s negligence that substitutes “substantial factor” or “sub-
stantial probability” for “preponderance of the evidence,”
that is, more-likely-than-not or greater-than-50-percent
causation. See generally Guest et al, 21 J Legal Econ at 56-57
(describing “substantial probability” theory of causation).
The “relaxed causation” approach to loss of chance, however,
is in the minority, and plaintiff does not rely on it.
The injury-based analytical approach—the one
urged by plaintiff in this case—is favored by commentators
and the majority of courts in other jurisdictions that have
approved of the loss-of-chance doctrine. That approach has
as its foundation the recognition of the lost chance as an
injury in itself.
For example, the author of an influential 1981 law
journal article posited that loss of chance need not be viewed
in terms of causation, but, rather, should be analyzed in terms
of how to value the lost chance itself. Joseph H. King, Jr.,
Causation, Valuation, and Chance in Personal Injury Torts
Involving Preexisting Conditions and Future Consequences,
90 Yale LJ 1353 (1981). Professor King maintained that
the loss of chance of achieving a favorable outcome “should
be compensable and should be valued appropriately, rather
than treated as an all-or-nothing proposition” dependent on
proof of a greater-than-50-percent chance of a better out-
come absent the alleged malpractice. Id. at 1354. He argued
that, in a medical malpractice situation in which a patient
presents with symptoms of a condition and a physician neg-
ligently fails to diagnose and treat that condition, the pre-
existing medical condition (which clearly was not caused
by the negligence) is merely something that is taken into
470 Smith v. Providence Health & Services
account when valuing the harm that actually was caused
by the negligent failure to diagnose: “The defendant should
be subject to liability only to the extent that he tortiously
contributed to the harm by allowing a preexisting condition
to progress[.]” Id. at 1360. The author provided the following
example:
“[C]onsider the case in which a doctor negligently fails
to diagnose a patient’s cancerous condition until it has
become inoperable. Assume further that even with a timely
diagnosis the patient would have had only a 30% chance
of recovering from the disease and surviving over the long
term. * * * [A loss-of-chance approach] would allow recovery
for the loss of the chance of cure even though the chance
was not better than even. The probability of long-term sur-
vival would be reflected in the amount of damages awarded
for the loss of the chance. While the plaintiff here could
not prove by a preponderance of the evidence that he was
denied a cure by the defendant’s negligence, he could show
by a preponderance that he was deprived of a 30% chance
of a cure.”
Id. at 1363-64.
Professor King acknowledged that, at the time his
1981 article was published, “few personal injury cases have
recognized, even implicitly, the loss of chance as a com-
pensable interest valued in its own right.” Id. at 1365-66.4
However, he went on to explain that valuation of a loss of
chance was “well within the competency of science,” noting
that “[o]ne may deduce the probability figure from so-called
‘relative frequency’ by looking at the way in which the same
or similar forces operated in the past.” Id. at 1386 (footnote
omitted). King also explained that treating loss of chance as
a theory of injury does not dispense with causation require-
ments, but instead shifts the causation inquiry to whether a
defendant caused the opportunity for a better outcome to be
lost—as opposed to the traditional negligence claim requir-
ing the plaintiff to establish that the defendant caused the
physical harm. King, 90 Yale LJ at 1395; see also Joseph H.
4
Interestingly enough, one of the cases the author cited as implicitly recog-
nizing loss of chance in terms of valuation was Feist v. Sears, Roebuck & Co., 267
Or 402, 517 P2d 675 (1973). King, 90 Yale LJ at 1366 n 40, 1380 n 96. Feist is
discussed more extensively below. See 361 Or at 484.
Cite as 361 Or 456 (2017) 471
King, Jr., “Reduction of Likelihood” Reformulation and Other
Retrofitting of the Loss-of-a-Chance Doctrine, 28 U Mem L
Rev 491 (1997) (discussing evolution of loss-of-chance as a
theory of injury).
Over twenty state courts have agreed with the
argument that King makes in his articles and have permit-
ted plaintiffs to assert a lost chance as a cognizable injury
in a medical malpractice claim. See Alice Férot, The Theory
of Loss of Chance: Between Reticence and Acceptance, 8 FIU
L Rev 591, 610 (2013) (listing cases); Lord v. Lovett, 146
NH 232, 770 A2d 1103 (2001); Dickhoff, 836 NW2d 321.
For example, in Matsuyama v. Birnbaum, 452 Mass 1, 890
NE2d 819 (2008), the Massachusetts Supreme Judicial
Court engaged in a comprehensive analysis of the loss-of-
chance theory. Ultimately, it concluded that such claims
should be cognizable, relying in part on Professor King’s
articles described above, as well as the rationale expli-
cated by the court in Hicks and the growing body of case
law from many jurisdictions recognizing the doctrine. The
court adopted the loss-of-chance theory of injury, limited
to the medical malpractice context, and explained that it
did not, in fact, relieve a plaintiff of the burden to prove
causation:
“[Massachusetts common law] requires that plaintiffs
establish causation by a preponderance of the evidence. In
order to prove loss of chance, a plaintiff must prove by a
preponderance of the evidence that the physician’s negli-
gence caused the plaintiff’s likelihood of achieving a more
favorable outcome to be diminished. That is, the plaintiff
must prove by a preponderance of the evidence that the
physician’s negligence caused the plaintiff’s injury, where
the injury consists of the diminished likelihood of achiev-
ing a more favorable medical outcome.”
Matsuyama, 452 Mass at 17, 890 NE2d at 832 (citations
omitted). In 2013, the Minnesota Supreme Court agreed
with the Massachusetts court and King’s critique of the
“all or nothing” approach to liability, explaining that it
was “recognizing that an injury that has always existed is
now capable of being proven to a reasonable degree of cer-
tainty” in medical malpractice cases. Dickhoff, 836 NW2d
at 333-35.
472 Smith v. Providence Health & Services
A significant number of states, however, have
rejected the loss-of-chance theory of recovery in medical
malpractice actions and instead adhere to a traditional “all-
or-nothing approach.” That approach requires the plaintiff
to establish that the patient would have had a better than
50 percent chance of survival or a favorable outcome, which
then triggers a right to recover all damages resulting from
the defendant’s malpractice. See Guest et al, 21 J Legal Econ
at 59 (listing 17 states, but two states—Oregon and New
Hampshire—should not be on the list).
As Professor King recognized, much of the early
case law addressing the loss-of-chance theory in negligence
cases considered solely whether the theory comported with
the traditional requirement that the plaintiff must prove, by
a preponderance of the evidence, that the medical negligence
caused the physical harm in order to recover damages. See,
e.g., Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio
St 2d 242, 251, 272 NE2d 97, 103 (1971) (holding, as “the
better rule,” that “to comport with the standard of proof of
proximate cause,” the plaintiff had to prove that the defen-
dant’s negligence, in probability, caused the death). But even
in more recent cases in the 1990s and 2000s in which courts
have rejected the loss-of-chance theory of injury, the ratio-
nale turned on the necessity of proving causation in a neg-
ligence claim. See, e.g., Kilpatrick v. Bryant, 868 SW2d 594
(Tenn 1993). In that case, the Tennessee Supreme Court
concluded that “plaintiffs ought to be required to show that
the negligence more likely than not was the cause in fact
of the unfavorable medical result,” explaining its holding in
terms of traditional causation:
“Although a plaintiff can recover for harm stemming from
the aggravation of an existing illness, the plaintiff may
not recover damages for the loss of a less than even chance
of obtaining a more favorable medical result. The tradi-
tional test for cause in fact prevents recovery because the
patient’s condition would more likely than not be the same
even if the defendant had not been negligent.”
868 SW2d at 602-03. More recently, the Connecticut
Supreme Court similarly held in Boone v. William W. Backus
Hospital, 272 Conn 551, 574, 864 A2d 1, 18 (2005), that,
Cite as 361 Or 456 (2017) 473
to establish a medical malpractice claim, a plaintiff must
prove that the decedent had at least a 51 percent chance of
survival—in other words, that it was more likely than not
that the negligent conduct caused “the actual outcome,” or
death.
When accepted, the loss-of-chance theory of injury
in tort cases has been largely limited to the medical mal-
practice arena. The primary reason for that limitation is
the recognition that, in the context of medical malpractice,
it is the alleged medical malpractice itself that makes it
impossible for the plaintiff to prove that he or she would
have achieved that better outcome. Thus, as Professor King
has explained, the loss-of-chance doctrine should apply
“for reasons of fairness,” when, but for the tortious con-
duct, “it would not have been necessary to grapple with the
imponderables of chance. Fate would have run its course.”
King, 90 Yale LJ at 1377. Stated another way, “the defen-
dant’s tortious conduct was the reason it was not feasible to
determine whether or not the more favorable outcome would
have materialized but for the tortious conduct.” King, 28 U
Mem L Rev at 543. See also Matsuyama, 452 Mass at 14,
890 NE2d at 831 (Courts adopting the doctrine recognize
that “it is particularly unjust to deny the person recovery for
being unable ‘to demonstrate to an absolute certainty what
would have happened in circumstances that the wrongdoer
did not allow to come to pass.’ ” (Quoting Hicks, 368 F2d at
632.)); Restatement (Third) of Torts § 26 comment n (2005)
(loss of chance “serves to ameliorate what would otherwise
be insurmountable problems of proof”). Some courts have
also recognized that the nature of the physician-patient
relationship provides a foundation for recognizing loss
of chance as an injury. See, e.g., Matsuyama, 452 Mass at
20, 890 NE2d at 835 (“medical negligence that harms the
patient’s chances of a more favorable outcome contravenes
the expectation at the heart of the doctor-patient relation-
ship that the physician will take every reasonable measure
to obtain an optimal outcome for the patient” (quotation and
citation omitted)); accord Restatement (Third) of Torts § 26
comment n (the very reason for the contractual relation-
ship between physician and patient is to obtain an optimal
patient outcome).
474 Smith v. Providence Health & Services
The loss-of-chance theory also functions in the con-
text of medical malpractice actions because, at least in some
instances of alleged negligence, ample reliable scientific evi-
dence about the statistical probability of various medical
outcomes is available. See, e.g., Matsuyama, 452 Mass at 20,
890 NE2d at 835 (“reliable expert evidence establishing loss
of chance is more likely to be available in a medical malprac-
tice case than in some other domains”). That is, the plaintiff
can demonstrate, through the use of expert testimony, the
statistical likelihood of a better medical outcome but for the
negligent conduct.
D. Oregon Common-Law Medical Malpractice Claims
Defendants contend that Oregon common-law med-
ical negligence cases are incompatible with, and therefore
foreclose recognition of, a loss-of-chance theory of injury or
harm. They first assert that, regardless of case law nation-
ally, this court has not recognized a loss-of-chance theory
in the past and, indeed, has consistently declined to recog-
nize what defendant describes as “new common law claims
or injuries” in cases involving common-law negligence.
Defendants further posit that, to recognize loss of chance
as a theory of injury in medical negligence cases, this court
would need to overrule precedent, but plaintiff has not sat-
isfied the conditions under which this court overrules such
precedent. See G.L. v. Kaiser Foundation Hospitals, Inc., 306
Or 54, 59, 757 P2d 1347 (1988) (party seeking a change in
court’s common law must show that earlier cases were inad-
equately considered or wrong, that other law has altered
some essential legal element assumed in the earlier cases, or
that the earlier rule was based on factual assumptions that
have changed). Accordingly, we turn to the cases on which
defendants rely.
The mainstay of defendants’ arguments is a pair of
this court’s cases from the early twentieth century: Horn
v. National Hospital Association, 169 Or 654, 131 P2d 455
(1942), and Lippold v. Kidd, 126 Or 160, 269 P 210 (1928).
We address those cases in detail to assess defendants’ argu-
ments and conclude that neither one preordains our decision
in this case.
Cite as 361 Or 456 (2017) 475
Horn, like the present case, involved allegations
of negligent failure to diagnose. In that case, the plaintiff
alleged that the defendant was negligent in failing to diag-
nose a gall bladder condition. The six-week delay in diagno-
sis led to a delay of three months before the plaintiff under-
went gall bladder surgery. Id. at 659-60, 665. In the years
immediately after the surgery, the plaintiff experienced
numerous health problems, including psychiatric problems,
thyroid problems, and irritable bowel syndrome. Id. at 666-
67. The plaintiff’s theory of the case was that the failure to
timely diagnose the gall bladder condition was a contribut-
ing cause of the conditions she experienced after the surgery.
This court was concerned with the weakness of the
plaintiff’s evidence, noting deficiencies in the logical chain
of events needed to establish but-for causation between the
assumed negligence of the defendant and her alleged injury.
Id. at 670-71. The court explained that the plaintiff’s proof
in that case failed because she lacked evidence that, at the
time of the misdiagnosis, surgery to remove the gall blad-
der would have been necessary or advisable; that she would
have undergone surgery earlier had it been recommended;
and that the alleged delay of the surgery “resulted in harm
or damage that would not have occurred if there had been
no delay.” Id. at 672-78. The portion of the Horn decision
on which defendants here rely concerns the last of those
evidentiary deficiencies. Defendants highlight this court’s
explanation that the plaintiff in Horn had to establish that
her ailments would have been less severe had the surgery
occurred earlier:
“Where the alleged negligence of the defendant con-
sisted of physical non-feasance, that is, where the defen-
dant did no physical act which affected plaintiff’s condition,
and the negligence, if any, was the failure to diagnose and
advise, it is not sufficient for a plaintiff to show subsequent
ailments * * *. One must go further and show that compe-
tent action would have been substituted for negligent inac-
tion, and that there was a reasonable probability that the
subsequent ailments would have been less if the substitu-
tion had been made.
“Uncertainty as to the amount of damages will not
always prevent recovery, but where the causal connection
476 Smith v. Providence Health & Services
between the negligent failure of a defendant and subse-
quent ailments of a plaintiff is left to mere speculation, a
nonsuit is required.”
169 Or at 679. Defendants contend that, like the plaintiff
in Horn, plaintiff in this case must show (but has failed to
plead) a causal connection between defendants’ conduct and
his physical injuries.
In Lippold, the plaintiff sought treatment for an eye
injury, and the defendant failed to detect a metal fragment
in the eye. The plaintiff subsequently lost sight in that eye.
This court explained that a plaintiff in a negligence action
must prove not only negligent conduct but must also “estab-
lish by a preponderance of the evidence that such negligence
was the proximate cause of the injury for which he seeks
redress in damages.” 126 Or at 169-70. The court noted that
the plaintiff’s proof was lacking. He had rested his case
“without supplying any testimony as to the effect upon the
eye produced by the presence of a foreign particle in its inte-
rior,” id. at 170, and failed to establish that the removal of
the metal fragment had even been possible, id. at 173. The
defendant had adduced medical evidence that the plaintiff
would have lost his sight regardless of whether the fragment
had been detected and removed when the plaintiff sought
treatment, and the plaintiff’s expert did not contradict that
evidence. Id. at 171-72. Thus, the evidence “gave to the jury
no formula whatever by which it could determine whether
the injury to the eye would eventually destroy its useful-
ness.” Id. at 174.
We are not convinced by defendants’ reliance on
Horn and Lippold. In both cases, the plaintiffs alleged that
the injuries for which they sought to recover were the health
problems that they experienced after they were seen by the
defendants. This court, therefore, analyzed the claims in
Horn and Lippold in terms of the causal connection between
the alleged negligence and the plaintiffs’ later ailments or
conditions. This court was not called on to decide whether
the loss of a chance at a better outcome was, in itself, an
actionable injury, and so Horn and Lippold do not foreclose
any possibility of viewing the injury from a negligent failure
to diagnose in a medical malpractice claim in terms of the
loss of the chance at a better medical outcome.
Cite as 361 Or 456 (2017) 477
E. Should Oregon Recognize Loss of Chance in the Context
of Common-Law Medical Malpractice Claims?
Plaintiff urges that (1) loss of a chance of a bet-
ter medical outcome is a discrete harm that he should be
allowed to plead and prove; (2) recognizing that loss is con-
sistent with the requirement that a plaintiff prove that the
defendant’s negligence was the cause in fact of the loss; and
(3) the decision of the Court of Appeals runs counter to
important goals of tort law. But, citing G.L. v. Kaiser
Foundation Hospitals, 306 Or at 59, defendants argue that
(1) plaintiff has not satisfied his burden to make the case for
changing the legal standard required for causation—and,
implicitly, that we cannot reach that issue—and (2) to recog-
nize the loss of chance as an injury would create unworkable
challenges for trial courts. Thus, the parties’ arguments
concerning whether Oregon should recognize loss of chance
as an injury in a medical malpractice action focus on two
major issues: Does G.L. constrain this court from consider-
ing changes to Oregon’s common law of medical negligence?
And, if we are not constrained, should Oregon recognize
loss of chance as a cognizable injury in medical malprac-
tice cases? We address each issue in turn and ultimately
conclude that we can and should recognize loss of chance as
an injury in the context of common-law medical malpractice
claims.
The passage in G.L. on which defendants rely con-
cerns stare decisis. In that passage, this court explained
that, when asked to overrule common-law precedent, that
is, when it “reconsiders a nonstatutory rule or doctrine,”
it ordinarily does that “upon one of three premises.” G.L.,
306 Or at 59. But in this case, plaintiff is not asking us to
overrule common-law precedent; rather, plaintiff contends
that, in an existing common-law cause of action—medical
negligence—Oregon should recognize a loss of chance as a
compensable injury. Plaintiff’s position is analagous to the
extension of the cause of action for common-law wrongful
discharge in Brown v. Transcon Lines, 284 Or 597, 588 P2d
1087 (1978). In Brown, this court expanded common-law
wrongful discharge to cover retaliation against a worker for
filing a workers’ compensation claim, which extended the
common law into a new realm of protected activity but did
478 Smith v. Providence Health & Services
not overrule precedent. Thus, we do not view either the gen-
eral doctrine of stare decisis—the “prudential doctrine that
is defined by the competing needs for stability and flexibil-
ity in Oregon law,” Farmers Ins. Co. v. Mowry, 350 Or 686,
697-98, 261 P3d 1 (2011)—or the often-recurring reasons
underlying the overruling of cases concerning the common
law, as articulated in G.L. and Mowry, as an insurmount-
able barrier to our ability to address the case before us.
As this court stated in Mowry, our obligation “when
formulating the common law is to reach what we determine
to be the correct result in each case.” 350 Or at 698. Whether
an existing common-law cause of action should be extended
in a new situation may involve consideration of whether a
plaintiff’s interests are otherwise adequately protected by
the law. When, for example, existing statutory remedies
“are adequate to protect both the interests of society” as
well as the interests of the plaintiff, this court has found it
“unnecessary to extend an additional tort remedy.” Walsh
v. Consolidated Freightways, 278 Or 347, 352, 563 P2d 1205
(1977). But this is not a case in which plaintiff is seeking an
“additional” remedy when he already has one. That is, defen-
dants do not suggest that plaintiff, or any victim of medical
malpractice that results in the loss of a chance for a desir-
able medical outcome that is not greater than even, has any
remedy at all if the common law does not provide one.
Rather, defendants’ main argument against recog-
nizing this theory of tort recovery is that it would result in
too heavy a reliance on statistical evidence, which defen-
dants describe as too speculative or subject to manipula-
tion. That argument has also been made in other states.
See, e.g., Matsuyama, 452 Mass at 17, 890 NE2d at 833. To
the extent that defendants suggest that a loss-of-chance
medical malpractice claim necessarily rests on evidence
that is too speculative because it involves odds that are
less than even, we disagree. As the Massachusetts court
explained in Matsuyama, ‘[t]he magnitude of a probability
is distinct from the degree of confidence with which it can
be estimated.” Id. That is, an expert opinion that a certain
treatment of a medical condition leads to a desirable medical
outcome in 33 percent of cases may be based on solid, unim-
peachable data, irrespective of whether that percentage is
Cite as 361 Or 456 (2017) 479
below 51 percent. The reliability of the data does not alter
the 33 percent chance, nor does the fact that the chance is
only 33 percent mean that the data on which it is based is
unreliable.
And, if the expert’s opinion about the 33 percent
chance is, in fact, incorrect, a defendant has the ability to
counter it with its own expert testimony, e.g., that the actual
percentage is much lower, that the sources on which the
plaintiff’s expert relies are faulty, that the result is based
on outcomes in cases that are not factually comparable to
the plaintiff’s case, and similar points undermining the reli-
ability of the plaintiff’s evidence. As the Matsuyama court
noted, “at least for certain conditions, medical science has
progressed to the point that physicians can gauge a patient’s
chances of survival to a reasonable degree of medical cer-
tainty, and indeed routinely use such statistics as tools of
medicine.” 452 Mass at 18, 890 NE2d at 834. We are uncon-
vinced that the nature of the evidence involved in a loss-
of-chance medical malpractice claim is so problematic as to
preclude recognition of such a claim.
That brings us to the question whether we should
adopt a loss-of-chance theory of injury in Oregon. We agree
with plaintiff that, unlike the “reduced causation” loss-
of-chance theory adopted in a handful of other jurisdic-
tions, the causation element of a medical negligence cause
of action in Oregon, see Joshi, 342 Or at 162 (ordinarily,
the plaintiff must prove that the defendant’s conduct more
likely than not caused the alleged injury), can apply to
the loss of chance when it is understood as an injury. In
other words, when the lost chance is the injury in a medical
malpractice action, the plaintiff still bears the burden to
prove that, more likely than not, the defendant’s negligence
caused the plaintiff to lose the chance of a favorable medi-
cal outcome.
We also consider important plaintiff’s argument
that failing to recognize a loss-of-chance theory of injury
in the context of medical malpractice has the effect of
insulating from malpractice claims the negligent services
that medical providers have given to those who seek treat-
ment for conditions when their odds of a favorable medical
480 Smith v. Providence Health & Services
outcome are less than 51 percent before treatment but who
can prove that they had an opportunity to realize that
favorable outcome with appropriate treatment. For exam-
ple, a negligent medical provider who prevents a patient
from having a shot at a 45 percent chance of a favorable
medical outcome need not compensate that patient at all.
That patient bears the entire cost of the negligent conduct,
a result that does not spread the risk of the negligent con-
duct to the negligent party, although “a function of the tort
system is to distribute the risk of injury to or among respon-
sible parties.” Bagley v. Mt. Bachelor, Inc., 356 Or 543, 551-
52, 340 P3d 27 (2014) (citing W. Page Keeton, Prosser and
Keaton on the Law of Torts § 4, 20-25 (5th ed 1984)). And, a
second principle of tort law, the “ ‘prophylactic’ factor of pre-
venting future harm,” id. at 551, is undercut when medi-
cal providers are insulated against malpractice committed
against patients when the same act (or omission) of negli-
gence would be cognizable if committed against a patient
with a better prognosis, for example, 51 percent. Taking
the hypothetical of a patient with a 45 percent chance at a
favorable outcome and looking at it from another angle, the
all-or-nothing rule always results in negligent physicians
avoiding liability and in uncompensated patients—even
though in 45 out of 100 instances, the patients suffered
their adverse medical outcomes because of the physician’s
negligence.
Moreover, as noted earlier, the physician-patient
relationship is a special one in which the patient with an
ailment or injury seeks to optimize the chance of recovery
and the physician undertakes a duty of care, skill, and dili-
gence to the patient. And when the physician’s negligence—
conduct below the standard of care—deprives a patient of
the one chance that the patient had at recovery, even when
that chance was not greater than a fifty-fifty proposition,
considerations of fairness weigh in favor of compensation for
the destruction of that chance. That is because the physi-
cian’s breach of the duty to the patient results in a situation
in which no one can know whether the patient would have
recovered with proper medical care.
That consideration distinguishes this court’s deci-
sion in Drollinger v. Mallon, 350 Or 652, 669, 260 P3d 482
Cite as 361 Or 456 (2017) 481
(2011), a legal malpractice action in which the plaintiff made
some “loss of chance” types of arguments. In Drollinger, this
court declined to apply “loss of chance” in the legal malprac-
tice context:
“In our view, the loss of chance doctrine should not be
imported into the legal malpractice context. Whatever the
merits in the medical malpractice context, where the proof
burden facing some plaintiffs otherwise would be insur-
mountable and where statistical evidence that can fill the
void is readily available, the argument for its application
in the legal malpractice context is less compelling, where
it would simply reduce the plaintiff’s burden vis-à-vis the
traditional ‘case within a case’ methodology.”
Id. at 669 (footnote omitted). Unlike a legal malpractice
plaintiff, who has an entirely adequate way of using the
“case within a case” methodology to demonstrate a better
outcome, a medical malpractice plaintiff pursuing a loss-of-
chance theory has lost the only chance due to the defendant’s
alleged negligence. Thus, the medical malpractice plaintiff
asserting loss of chance is not, contrary to defendant’s sug-
gestion in the present case, in essentially the same position
as a legal malpractice plaintiff.
As described earlier, numerous state courts have
earlier decided the question before us, some as early as in the
1970s. There appears to be no data indicating that medical
malpractice litigation has gone up or that malpractice insur-
ance premiums have gone up because of or even in a way
that is correlated with a state’s decision to adopt the loss-
of-chance theory of recovery in medical malpractice actions.
See generally Koch, 88 NC L Rev at 619-26 (reviewing cer-
tain data and arguing that adoption of the loss-of-chance
theory has no significant impact on numbers of actions or
malpractice insurance costs). Neither defendants nor amici
Oregon Medical Association (OMA) and American Medical
Association (AMA) attempt to make the argument that
adoption of the doctrine would have those kinds of effects.
The OMA and AMA do assert that adoption of the doctrine
will increase “defensive medicine” practice in Oregon, but
they provide no analysis or data indicating that has been
shown to be the case in the states that have already adopted
the loss-of-chance theory.
482 Smith v. Providence Health & Services
In tandem with that assertion of adverse effects
on medical practice, defendants, the OMA, and the AMA
all urge that the legislature is the appropriate decision
maker concerning the loss-of-chance doctrine. First, we
readily reject the OMA and AMA’s argument that, because
the Oregon Legislative Assembly has chosen to enact some
legislation addressing inappropriate medical practice,
see ORS 677.097 (an “informed consent” requirement),
we should understand, from the absence of any statute
in Oregon concerning loss-of-chance, that the legislature
has made a policy choice about the loss-of-chance theory
that we should honor. Rather, the absence of any statute
indicates that, despite being the subject of litigation in the
state courts over the course of the past 40 years, the loss-
of-chance theory has not been of legislative interest. See
Koch, 88 NC L Rev at 614-17 (describing limited legisla-
tive efforts concerning the loss-of-chance doctrine despite
legislative efforts targeting tort reform among the states).
Second, implicit in defendants’ argument are two false
assumptions: (1) our rejection of the loss-of-chance doctrine
would be a nondecision, reserving the issue for the legis-
lature and (2) the inverse of that assumption—that our
acceptance of the loss-of-chance doctrine would be a deci-
sion precluding legislative action. The fact is that, regard-
less of whether the legislature could have in the past or
may in the future weigh in on this issue, this court is the
forum for a case involving a common-law medical malprac-
tice claim and that we are called on to decide common-law
cases properly presented to us.
In light of all those considerations, we conclude that
a limited loss-of-chance theory of recovery should be recog-
nized in common-law negligence cases involving medical
malpractice in Oregon. Because this case was dismissed at
the pleading stage, it presents only a limited opportunity to
discuss the various aspects of such a claim and the consid-
erations in litigating a medical malpractice claim in which
the plaintiff alleges the loss of a chance at a recovery or
better medical outcome. However, we address some practical
concerns that defendants and amici raise and provide some
contours of that theory of recovery to provide guidance on
remand.
Cite as 361 Or 456 (2017) 483
First, as defendants and the OMA and AMA note,
some jurisdictions that accept loss of chance as an injury
require the plaintiff to establish that he or she lost a “sub-
stantial chance” of a better medical outcome due to the defen-
dant’s medical negligence. In this case, plaintiff alleges that
he lost a 33 percent chance at no or limited complications
from his stroke because of defendants’ negligence. Although
there are numerous reasons why the courts in those other
jurisdictions have required the loss of a “substantial chance,”
we need not decide that issue in this case, because we con-
clude as a matter of law that, whether required or not, plain-
tiff has alleged the loss of a substantial chance by alleging
a 33 percent chance of total or close to total recovery from
his stroke had defendants provided him with non-negligent
care.
Second, as defendants argue, fairness to defendants
requires that plaintiff plead with specificity the lost chance
of a better medical outcome. In practical terms, a plaintiff
must plead the percentage and quality of his or her loss
of chance, which in turn must be based on the plaintiff’s
experts and relevant scientific evidence that meets the stan-
dard of reasonable medical probability. Plaintiff’s allegation
in this case is sufficient to meet the pleading requirement.5
Third, as his complaint reflects, plaintiff has suf-
fered the physical harm that he might well have avoided
had he received proper medical care. That present adverse
medical outcome is an essential element of a common-law
medical malpractice claim and provides the foundation
for a calculation of plaintiff’s damages. Most jurisdictions
that have recognized loss of chance as a theory of injury in
medical malpractice cases have an approach akin to that
suggested by Professor King in the 1981 law review article
cited above. That is, to paraphrase it, a plaintiff who demon-
strates that a physician’s negligence reduced his chance of a
5
We note that this case involves a “loss of chance as injury” claim because
plaintiff was unable to allege that he had at least a 51 percent chance of recovery
but for defendants’ malpractice. Had he been able to make that allegation, he
would have had the ability to prove a standard medical malpractice claim based
on the ultimate poor medical outcome as the injury. In other words, that kind of
allegation involves proof of the medical outcome as the injury and not the lost
chance as the injury.
484 Smith v. Providence Health & Services
favorable medical outcome from 33 percent to zero percent
could recover damages based on the unfavorable medical
consequences suffered, but only to the possible extent of 33
percent of the damages resulting from the adverse medical
outcome. See, e.g., King, 90 Yale LJ at 1363-64.
Professor King cited this court’s decision in Feist
v. Sears, Roebuck & Co., 267 Or 402, 517 P2d 675 (1973),
as consistent with that approach, and we agree. In Feist,
which was not a medical malpractice case, there was no dis-
pute that the defendant’s negligence caused a cash register
to fall onto a child’s head, fracturing her skull and tearing
the skull’s lining. Id. at 403-04. The plaintiff’s expert tes-
tified that, to a reasonable degree of medical certainty, the
child was susceptible to meningitis as a result of the injuries
to her skull, although her chance of developing meningitis
was low, and one of the questions on appeal was the permis-
sibility of an instruction allowing the jury to award dam-
ages for that increased susceptibility. Id. at 410. This court
explained that, when there is evidence of an injury and a
susceptibility to the development of complications from that
injury in the future, such evidence “is sufficient as the basis
for a finding by the jury of some disability” and that the
jury can “make a larger award of damages” than in a case
that does not involve that type of “danger, risk, or suscep-
tibility.” Id. at 412. Although this court did not suggest a
specific mathematical formula by which damages were to be
ascertained, it clearly indicated that a jury should be guided
in its award of damages by its assessment of the likelihood
that the defendant’s negligence led to (or would lead to) the
medical sequelae of the negligence. 267 Or at 410-12.
In addition, it is implicit from this court’s decision in
Coffey v. Northwestern Hospital Association, 96 Or 100, 183
P 762, on reh’g, 96 Or 113, 115-16, 189 P 407 (1920), and more
explicit from this court’s decision in Curtis v. MRI Imaging
Services II, 327 Or 9, 956 P2d 960 (1988), that distress—both
physical and emotional—directly and foreseeably attrib-
utable to negligence involving diagnosis and treatment of
a patient is recoverable under a loss-of-chance theory. In
Coffey, this court held that the plaintiff was entitled to seek
recovery of her damages for both mental and physical pain
and suffering she experienced due to the defendant’s failure
Cite as 361 Or 456 (2017) 485
to promptly provide surgical services. 96 Or at 115-18. See
also Curtis, 327 Or at 15 (permitting the plaintiff to recover
for psychological harm). Accordingly, plaintiff may recover
for both physical and emotional damages.
IV. CONCLUSION
Although this court has not previously recognized
loss of chance as a theory of recovery in a negligence case,
we conclude that a loss of a substantial chance of a better
medical outcome can be a cognizable injury in a common-
law claim of medical malpractice in Oregon. Accordingly, we
conclude that the trial court erred in dismissing plaintiff’s
claim.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.