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Oregon Court rules on medical malpractice case

December 27, 2010

Oregon Court of Appeals limits comparative fault defense in medical malpractice cases
Byby Shemia Fagan, Ater Wynne,
Oregon Law Firm,

This month, the Oregon Court of Appeals addressed the comparative fault defense in the context of medical malpractice cases in Son v. Ashland Community Healthcare Services.   Sara Burns died while under the medical care of Ashland Community Healthcare Services (“ACHS”) after she attempted suicide by overdosing on various drugs. 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 prevented her death. The jury returned a verdict for the plaintiff for $740,000, after which the court reduced the award by a percentage because of Sara’s comparative fault. Plaintiff appealed.

The Oregon Court of Appeals reversed, 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 Oregon Court of Appeals narrowed the rule in medical malpractice cases to the injury caused by the negligent treatment, not the oringal 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.

In sum, the court annouced 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.”

  
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Steve @ Medical Malpractice December 29, 2010

I have never thought of comparative negligence in regards to medical malpractice. But I do believe that the Court was right in separating the conduct that created the need for medical treatment from the negligent treatment itself.

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