Martineau v. McKenzie-Willamette Med. Ctr.
| Decision Date | 29 June 2022 |
| Docket Number | A172846 |
| Citation | 320 Or.App. 534,514 P.3d 520 |
| Parties | Jamie MARTINEAU, Personal Representative of the Decedent, Aaron Martineau, Plaintiff-Appellant, v. MCKENZIE-WILLAMETTE MEDICAL CENTER, an assumed business name of McKenzie-Willamette Regional Medical Center Associates, a limited liability company, Defendant, and Radiology Associates, P.C., a corporation; Dariusz Zawierucha, M.D., an individual; Cascade Medical Associates, the assumed business name of Doctor's Emergency Room Corporation, P.C., a corporation; and Gary Josephsen, M.D., an individual, Defendants-Respondents. |
| Court | Oregon Court of Appeals |
Travis Eiva, Portland, argued the cause and filed the briefs for appellant.
Lindsey H. Hughes, Portland, argued the cause for respondents Gary Josephsen, M.D., and Cascade Medical Associates. Also on the brief were Hillary A. Taylor and Keating Jones Hughes, P.C.
Alice S. Newlin, Portland, argued the cause for respondents Radiology Associates and Dariusz Zawierucha, M.D. Also on the brief were Jay W. Beattie, Nikola L. Jones, and Lindsay Hart, LLP.
Before James, Presiding Judge, and Egan, Judge, and Kamins, Judge.
Aaron Martineau visited the emergency room after experiencing chest pain and other symptoms. There, defendant Josephson examined him and arranged for a chest x-ray, which defendant Zawierucha read. Based on the results and on review of an electrocardiogram of a different patient, Josephson concluded that Martineau did not have an urgent cardiovascular problem or need further testing immediately. In fact, Martineau had an urgent cardiovascular problem, and he died approximately 24 hours later.
Plaintiff, in her capacity as personal representative of Martineau, brought medical malpractice claims against defendant Josephson and the Doctor's Emergency Room Corporation, P.C. (the ER defendants) and Zawierucha and Radiology Associates, P.C. (the radiology defendants). She appeals a general judgment entered after the trial court dismissed her claim for loss of chance of recovery and after a jury returned a verdict in defendants’ favor on her wrongful death claim. Plaintiff raises five assignments of error. We write only to address two. As explained below, we conclude that the trial court erred in instructing the jury using Uniform Civil Jury Instruction (UCJI) 44.03, which is likely to mislead the jury and incorrectly states the law, and that the error was not harmless. Accordingly, plaintiff is entitled to a new trial on her wrongful death claim. We also conclude that the court erred in dismissing plaintiff's claim for loss of chance of recovery, which was pleaded as an alternative to her wrongful death claim. Our conclusion that a new trial is necessary obviates the need to address plaintiff's second through fourth assignments of error, as the evidentiary issues that they concern may not arise in the same way on remand. We reverse and remand.
We begin by considering plaintiff's fifth assignment of error, in which she contends that the court erred in instructing the jury in the language of UCJI 44.03, which provides,
In objecting to the instruction, plaintiff pointed out that Oregon appellate courts have never approved giving it, and that, recently, in Sherertz v. Brownstein Rask , 288 Or. App. 719, 407 P.3d 914 (2017), we cast doubt on its correctness in general and held that, in a legal malpractice case that turned on the attorney's promise to accomplish a particular result, it was reversible error for the court to give a modified version of it. In this case, the court rejected plaintiff's objection without explanation and gave the instruction.
We review a trial court's decision to give a particular instruction primarily to determine "whether the instruction, when read together with the other instructions given, completely and accurately stated the law applicable to the case." Id. at 722, 407 P.3d 914. In any jury trial, parties are entitled to have the jury instructed in the law that governs the case in plain, clear, simple language. Jury instructions should seek to assist and enlighten the jury, and to acquaint them in an approachable manner with the applicable law. " " Estate of Michelle Schwarz v. Philip Morris Inc. , 348 Or. 442, 454, 235 P.3d 668, adh'd to on recons , 349 Or. 521, 246 P.3d 479 (2010) (quoting Williams et al. v. Portland Gen. Elec. , Co., 195 Or. 597, 610, 247 P.2d 494 (1952) ).
Medical malpractice cases are Rogers v. Meridian Park Hospital , 307 Or. 612, 619-20, 772 P.2d 929 (1989). Since 1975, a physician's duty of care has been codified in ORS 677.095, which now provides as follows:
"A physician licensed to practice medicine or podiatry by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."
To understand the instruction at issue here, it is necessary to place it in its historical context. As the Oregon Supreme Court began to articulate the standard of care for physicians that was eventually codified in 1975, the court adopted two rules, commonly stated together, that it often applied in the course of evaluating the sufficiency of the evidence of negligence in medical malpractice cases. One of the rules was the "error-of-judgment rule," which distinguishes choices, or judgments, that later turn out to be incorrect, from medical negligence. Rogers , 307 Or. at 615, 772 P.2d 929. See, e.g. , Lehman v. Knott , 100 Or. 59, 71, 196 P. 476 (1921) (); see also Hills v. Shaw , 69 Or. 460, 468, 137 P. 229 (1913) ().
In Rogers , the Supreme Court held that, in light of the statutory standard of care, it is error to instruct the jury in a medical malpractice case regarding a physician's judgment. 307 Or. at 620, 772 P.2d 929. The court noted that the error-of-judgment rule derived both from the principle that a physician is not a warrantor of a cure and from the recognition that there may be more than one acceptable treatment for a given condition and that a choice between those treatments is not necessarily negligent. Id. at 615-16, 772 P.2d 929. Both of those concepts have been subsumed by the standard of care for physicians: "The fundamental issue in [medical malpractice] cases, as in all negligence cases, is whether the defendant breached the standard of care and caused injury to the plaintiff." Id. at 619, 772 P.2d 929.
The court concluded that the error-of-judgment instruction given in Rogers "obscures the fact that, to avoid liability, the defendant must exercise the degree of care, skill, and diligence required by law." Id. That is, by directing the jury's attention to whether there are reasonable differences of opinion in the medical community and whether a physician exercised reasonable judgment, the instruction directed attention away from what is actually the critical issue in a medical malpractice case—whether the physician exercised reasonable care. Id. For that reason, and because the phrase "error of judgment" was also confusing, the court held that it was error to instruct the jury in terms of a physician's judgment: "[S]uch instructions not only confuse, but they are also incorrect because they suggest that substandard conduct is permissible if it is garbed as an ‘exercise of judgment.’ " Id. at 620, 772 P.2d 929.
The second rule that the Supreme Court adopted in early cases—and that, as the court noted in Rogers , formed one of the grounds on which the error-of-judgment rule was based: "[A] physician is not a warrantor of a cure." Crewse v. Munroe , 224 Or. 174, 177, 355 P.2d 637 (1960) ; see also, e.g. , Hotelling v. Walther , 169 Or. 559, 562, 130 P.2d 944 (1942) ().
The idea that a physician is not a warrantor of a cure is intertwined in Oregon appellate case law with a concept that the court did not discuss in Rogers —namely, res ipsa loquitur , a doctrine of negligence in which an accident or injury "speaks for itself." Watzig v. Tobin , 292 Or. 645, 648, 642 P.2d 651 (1982). "In essence, [res ipsa loquitur ] is a rule of circumstantial evidence that allows an inference of negligence to be drawn if the accident is of a kind which ordinarily would not have occurred in the absence of the defendant's negligence, even though it is impossible to determine the specific way in which the defendant was negligent." Id. Before presenting any argument of that kind to the jury, the party invoking the doctrine must present evidence sufficient to Hagler v. Coastal Farm Holdings, Inc. , 354 Or. 132, 146, 309 P.3d 1073 (2013) (internal citation and quotation marks omitted).
In early medical malpractice cases, plaintiffs sometimes implicitly or explicitly sought to apply the doctrine of res ipsa loquitur to support an argument that, because...
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