Chouinard v. Health Ventures

• Decision Date: 13 February 2002
• Citation: 39 P.3d 951,179 Or. App. 507
• Parties: Kathryn M. CHOUINARD, Appellant, v. HEALTH VENTURES, Defendant, and Radiology Associates, P.C., an Oregon corporation, dba Oregon Imaging Center; and Gregory D. Kienzle, Respondents.
• Court: Oregon Court of Appeals

39 P.3d 951

179 Or. App. 507

Kathryn M. CHOUINARD, Appellant, v. HEALTH VENTURES, Defendant, and Radiology Associates, P.C., an Oregon corporation, dba Oregon Imaging Center; and Gregory D. Kienzle, Respondents.

16-96-11470; A109103

Court of Appeals of Oregon.

Argued and Submitted July 3, 2001.

Decided February 13, 2002.

Tonya Kowalski, Portland, argued the cause and filed the opening brief for appellant. With her on the reply brief were Gary M. Bullock, Wade V. Regier, and Bullock and Regier, P.C.

Lindsey H. Hughes, Portland, argued the cause for respondents. With her on the brief were Noah Jarrett and Keating Jones Bildstein & Hughes, P.C.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

KISTLER, J.

Plaintiff sued defendants for medical malpractice. The trial court directed a verdict in defendants' favor because the jury could not reasonably infer that defendants' breach of the standard of care caused plaintiff's injuries. We affirm.

We state the facts in the light most favorable to plaintiff. Wheeler v. LaViolette, 129 Or.App. 57, 60, 877 P.2d 665 (1994). Plaintiff has a history of migraine headaches. In September 1993, she visited her physician, Dr. Pugsley, and reported that she had recently experienced disorientation and scattered thinking in addition to headaches. Pugsley attributed the symptoms to stress because plaintiff was working more than usual. She prescribed muscle relaxants, which relieved plaintiff's symptoms. In November, plaintiff reported that the headaches had returned and that they had become more frequent and severe. Plaintiff was expecting her second child at the time, and the doctor concluded that pregnancy and stress could be responsible for the symptoms.

Plaintiff did not see Pugsley again until March 1994. At that time, plaintiff complained of daily headaches. Pugsley prescribed additional medications and plaintiff's symptoms abated. In November, plaintiff complained of dizziness and sensitivity to light, but those symptoms disappeared in December. In January 1995, plaintiff returned to Pugsley. She reported that the medications were no longer working and that she had a headache more than 50 percent of the time. She also said that the pain she was experiencing was different from the pain associated with her earlier migraines. Pugsley prescribed additional medication, and plaintiff tried physical therapy.

On February 13, 1995, plaintiff reported that she had been listing to one side and feeling disoriented. Pugsley ordered a CT scan, which was performed that day. Dr. Kienzle, a neuroradiologist, analyzed the scan. Because Kienzle concluded that plaintiff's CT scan was normal, he did not order an MRI. Kienzle reported to Pugsley that he did not see any abnormality.

Plaintiff's symptoms worsened. She worked less, and then not at all. In late April and May, plaintiff was unable to care for her children and spent most of her time in bed or resting on the couch. Plaintiff reported vertigo, nausea, frequent vomiting, confusion, sensitivity to light, and disabling pain. Pugsley referred plaintiff to another neurologist, Dr. Lockfeld. Lockfeld treated plaintiff for an inner ear infection. Based on her lack of response to treatment, Lockfeld ordered an MRI in June 1995. That test revealed a three-centimeter tumor at the base of plaintiff's brain. Plaintiff underwent surgery in July, and most of the tumor was removed. Because the tumor was malignant, plaintiff also underwent radiation treatment.

Plaintiff sued Kienzle and Radiology Associates, P.C., claiming that Kienzle had negligently misread the February CT scan. She alleged that, as a result of Kienzle's negligence, the diagnosis and treatment of the tumor had been delayed approximately 100 days. She also alleged that the delay caused or aggravated various physical and emotional problems during that period. The primary component of her damages claim was for "pain and suffering during the delay, and emotional damages from her fears of recurrence, growth, and spread of the cancer and fears for her long term prognosis."

Several doctors testified at the trial. Dr. Miller, who performed the surgery, testified that, if the tumor had continued to grow untreated, plaintiff would have died. Lockfeld, plaintiff's neurologist, testified that he would have expected a brain tumor to produce "gradually worsening symptoms rather than episodic symptoms," as plaintiff had been experiencing. He explained that the symptoms plaintiff exhibited could be indicative of "a growing thing in the brain" but that, before the MRI, that "was not the only item under consideration." He testified that multiple sclerosis, for instance, could cause the same symptoms. He also said that he was "not certain that that lesion would cause headaches unless it was producing blockage of the fluid, spinal fluid, which apparently it was not." Dr. Gemmell, who conducted the radiation therapy after surgery, testified that plaintiff's tumor was of a "moderately high proliferative" type, meaning that its cells were multiplying and could spread. Plaintiff's husband testified that plaintiff was "much better" after treatment, although she "still has problems with her balance and whatnot and motor skills." Plaintiff testified that, after the surgery, she still has a lot of health problems and "can't walk more than a block" but has had several clear MRI's since her surgery.

At trial, plaintiff sought to recover damages for the four-month period from February 1995, when defendants failed to discover the tumor, to June 1995, when the tumor was diagnosed. She argued primarily that she was entitled to recover damages for both the physical pain and the attendant mental distress that she suffered during that period. Alternatively, she argued that she suffered emotional distress when she learned in June that defendants had failed to diagnose and remove her malignant tumor four months earlier. Although plaintiff's alternative theory sought only emotional distress damages, plaintiff argued that the presence of a growing tumor in her body was a sufficient physical impact to permit recovery of damages for psychic injury alone.

After plaintiff rested, defendants moved for a directed verdict. They argued that plaintiff had failed to prove that she had sustained any physical injury as a result of their alleged negligence.¹ Defendants did not dispute that the jury reasonably could find that plaintiff had suffered physical problems during the four-month period after defendants failed to discover plaintiff's tumor. They argued, however, that plaintiff had failed to introduce any expert testimony to prove that their negligence was the cause of those problems; that is, none of the doctors had testified to a reasonable medical probability that the undiagnosed tumor had caused plaintiff's physical problems. After reviewing the testimony, the trial court ruled: "I think I'm left with no choice but to grant the motion."

On appeal, plaintiff argues that, under either theory of damages, the evidence was sufficient to send her malpractice claim to the jury. We examine each of plaintiff's theories in turn. Plaintiff argues initially that the jury reasonably could find that defendants' failure to discover her tumor resulted in both physical impairment and mental distress during the four-month period following Kienzle's diagnosis. On that point, plaintiff does not dispute that, as a general rule, a plaintiff in a medical malpractice case must offer expert testimony that, to a reasonable medical probability, the alleged breach of the standard of care caused the plaintiff's injuries. See Cleland v. Wilcox, 273 Or. 883, 887-88, 543 P.2d 1032 (1975)

; Myers v. Dunscombe, 64 Or.App. 722, 723, 669 P.2d 388,

rev. den. 296 Or. 236, 675 P.2d 490 (1983).² She also does not dispute that no expert said that her tumor caused the physical symptoms she experienced. Plaintiff argues, however, that the evidence was sufficient in this case to permit the jury to infer causation even in the absence of that testimony.

Not every medical case requires expert testimony to establish either the standard of care or causation. Fieux v. Cardiovascular Thoracic Clinic, P.C., 159 Or.App. 637, 978 P.2d 429,rev. den. 329 Or. 318, 994 P.2d 123 (1999). We accordingly held in Fieux that no expert testimony was required to prove that a physician was negligent for leaving a clamp behind the patient's heart.³See id. Conversely, in Howerton v. Pfaff, 246 Or. 341, 348, 425 P.2d 533 (1967), the court held that the jury could not determine, without expert testimony, whether an accident caused the plaintiff's hernia, even though the nature of that condition was a matter of common knowledge. Similarly, in Myers, we affirmed a directed verdict because the plaintiff's medical expert offered no opinion as to causation, and at least one possible alternative cause was available to explain the plaintiff's "complicated medical question." 64 Or.App. at 723,669 P.2d 388; see also Cleland, 273 Or. at 888,

543 P.2d 1032 (inconclusive testimony did not sufficiently explain cause of a complex medical condition).

Although plaintiff argues that tumors and their effects on the body are a matter of common knowledge, we agree with the trial court that the issue of causation was a complex medical question that required expert testimony. See Cleland, 273 Or. at 888,

543 P.2d 1032. Lockfeld testified that a brain tumor ordinarily causes "gradually worsening" rather than episodic symptoms, but Pugsley described plaintiff's symptoms as episodic. Plaintiff's most consistent complaint was of severe headaches, but Lockfeld said that he was "not certain" that a tumor like plaintiff's would cause headaches, and Pugsley reported that plaintiff had suffered migraines "for years and years" before these events. The physicians who testified said that symptoms like plaintiff's could be explained by other causes, including stress, pregnancy, multiple...