Sloan v. Providence Health System-Oregon

• Decision Date: 04 April 2019
• Docket Number: CC 094049L2 (SC S064748)
• Citation: 437 P.3d 1097,364 Or. 635
• Parties: Dennis L. SLOAN, Personal Representative, ON BEHALF OF the ESTATE OF Jack L. SLOAN, Respondent on Review, v. PROVIDENCE HEALTH SYSTEM-OREGON, et al., Defendants, and Apogee Medical Group, P.C., a corporation, Petitioner on Review.
• Court: Oregon Supreme Court

364 Or. 635

437 P.3d 1097

Dennis L. SLOAN, Personal Representative, ON BEHALF OF the ESTATE OF Jack L. SLOAN, Respondent on Review,

v.PROVIDENCE HEALTH SYSTEM-OREGON, et al., Defendants,andApogee Medical Group, P.C., a corporation, Petitioner on Review.

CC 094049L2 (SC S064748)

Supreme Court of Oregon.

Argued and submitted November 13, 2017.

April 4, 2019

Michael T. Stone, Brisbee & Stockton LLC, Hillsboro, argued the cause and filed the briefs for petitioner on review.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for respondent on review. Also on the brief was J. William Savage.

Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter PC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.^**

DUNCAN, J.

In this medical negligence action, plaintiff appealed, asserting that the trial court erred in refusing to give his requested jury instruction concerning a tortfeasor’s liability for the subsequent conduct of another. The Court of Appeals agreed and reversed the trial court’s judgment in part and remanded the case to the trial court for a new trial. Sloan v. Providence Health System-Oregon , 282 Or. App. 301, 386 P.3d 203 (2016). On defendant’s petition, we allowed review, and, for the reasons explained below, we affirm the Court of Appeals decision, reverse the trial court’s judgment in part, and remand the case for a new trial.

I. HISTORICAL AND PROCEDURAL FACTS

Acting as the personal representative of his father’s estate, plaintiff brought this medical negligence action against defendants Providence and Apogee. Plaintiff asserted that defendants were negligent in their care of plaintiff’s father, Sloan, because they failed to diagnose and treat Sloan’s rib fractures

and internal bleeding. On November 3, Sloan, who was 85 years old, came to Providence’s hospital after falling at home and was initially treated by Providence’s emergency department personnel. He was later admitted to the hospital, where he was treated by Apogee’s doctors. On November 7, Apogee’s doctors discharged Sloan to a skilled nursing facility, Three Fountains. On November 17, Sloan’s condition worsened significantly. His blood oxygen saturation levels dropped and his breathing became rapid and shallow. A nurse practitioner at Three Fountains believed that something was happening with Sloan’s lungs and suspected he might have pneumonia. Sloan’s condition continued to worsen over the next two days, and, on November 19, Three Fountains returned Sloan to the hospital. At the hospital, Sloan was found to have multiple displaced rib fractures and bleeding in his right chest cavity, which had caused his right lung to collapse. Later that same day, Sloan died of respiratory failure due to the bleeding in his chest cavity and the collapse of his lung.

Thereafter, plaintiff brought this medical negligence action against defendants. At trial, plaintiff’s theory was that, when Sloan first came to the hospital, he had fractured ribs that were causing bleeding into his chest cavity and that Providence and Apogee’s doctors failed to diagnose and treat those problems, which continued and eventually led to Sloan’s death. Plaintiff did not make any claims against Three Fountains.

Providence and Apogee did not dispute the medical cause of Sloan’s death, but they did dispute that Sloan had displaced fractured

ribs and internal bleeding during his first stay at the hospital. They suggested that "something happened" while Sloan was at Three Fountains that caused Sloan’s death. Providence and Apogee did not identity a particular cause and did not assert that Three Fountains was negligent. But they presented evidence suggesting that Sloan’s ribs could have fractured—or, if any of them were already fractured, the fractures could have been displaced—by Sloan’s own movements while at Three Fountains or by actions or omissions by Three Fountains. In support of that theory, Providence and Apogee presented testimony from medical experts. One expert testified that rib fractures

can be displaced "just in the course of breathing, rolling around, getting in and out of bed." Another suggested that Sloan’s rib fractures could have been displaced during physical therapy at Three Fountains. Providence and Apogee also presented evidence that, although Three Fountains knew that Sloan was a high fall risk, Sloan was not always assisted when walking. In addition, the nurse practitioner from Three Fountains testified that no one at Three Fountains was aware that Sloan had fractured ribs, but that she would want to know if a patient had fractured ribs because that patient would be at risk of bleeding into his chest cavity or puncturing a lung.

Because Providence and Apogee’s theory raised the possibility that Sloan’s death was caused by something that happened at Three Fountains, plaintiff requested a jury instruction regarding a tortfeasor’s liability for the subsequent conduct of a third party (the Liability for Subsequent Conduct Instruction). Similar to Uniform Civil Jury Instruction 20.07, plaintiff’s requested instruction stated:

"If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant would also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable."¹

Plaintiff argued that, because defendants were implying that Three Fountains caused Sloan’s death, the jury needed to know that, if Providence and Apogee were negligent, they could be liable for Sloan’s death, even if Three Fountains' subsequent conduct contributed to the death.

Defendants objected to the instruction. Defense counsel read the instruction as applicable only if defendants were asserting that Three Fountains was negligent, and he asserted that defendants were "not contending that anybody dropped the ball, necessarily." Defense counsel commented, "I think that what we have is what historically has been thought of as [an] intervening superseding cause. And if that’s the kind of instruction that needs to be given then so be it."

The trial court refused to give plaintiff’s Liability for Subsequent Conduct Instruction.² Plaintiff expressly excepted to the trial court’s refusal to give the instruction, asserting that he was entitled to it

"because of the suggestions by [defense counsel] and argument that something that happened over at the Three Fountains home is responsible for the death of Mr. Sloan as opposed to the acts of negligence that are set forth in Plaintiff’s *** complaint."

As relevant to the issues on review, the trial court instructed the jury on negligence, reasonable foreseeability, causation, multiple causation, and two or more possible causes, stating:

"The law assumes that all persons have obeyed the law and have been free from negligence.

"To recover, the plaintiff must prove two things by a preponderance of the evidence: (1) that the defendants were negligent in at least one of the ways claimed in the plaintiff’s complaint; and (2) that the defendants' negligence was a cause of damage to the plaintiff.

"* * * * *"A person is liable only for the reasonably foreseeable consequences of his or her actions. There are two things that must be foreseeable. First, the plaintiff must be within the general class of persons that one reasonably would anticipate might be threatened by the defendant’s conduct. Second, the harm suffered must be within the general class of harms that one reasonably would anticipate might result from the defendant’s conduct.

"A cause is defined as an act or omission that is a substantial factor in bringing about the harm. A substantial factor is an important or material factor and not one that is insignificant.

"Many factors or things may operate either independently or together to cause harm. In such a case, each may be a cause of the harm even though the others by themselves would have been sufficient to cause the same harm. If you find that the defendant’s act or omission was a substantial factor in causing the harm to the plaintiff, you may find that the defendant’s conduct caused the harm even though it was not the only cause.

"Where there are two or more possible causes for an injury for one or more of which a defendant is not responsible, there can be no recovery unless it is shown that as between the causes in question, the cause for which a defendant is responsible is the more probable.

"If the evidence leaves it as probable that the injury was a result of one cause as much as another, then the plaintiff cannot recover from that defendant."

The jury found that Providence was not negligent. It found that Apogee was negligent, but not the cause of Sloan’s death. After the verdict, plaintiff moved for a new trial, asserting, among other things, that the trial court had erred by refusing to give the Liability for Subsequent Conduct Instruction. The trial court denied the motion, and plaintiff appealed.

On appeal, plaintiff assigned error to the trial court’s refusal to give the instruction and its denial of his motion for a new trial. The Court of Appeals concluded that the instruction was a correct statement of the law, was supported by the evidence, and, in light of the parties' competing theories of the case, was necessary to avoid jury confusion. Sloan , 282 Or. App. at 313-18, 386 P.3d 203. Accordingly, the Court of Appeals reversed the trial court’s judgment and remanded for a new trial. Id. at 319, 386 P.3d 203.³ On Apogee’s petition, this court allowed review to address whether the trial court erred in refusing to give the Liability for Subsequent Conduct Instruction.⁴

II. ARGUMENTS ON REVIEW

On review, Apogee makes three arguments. First, Apogee argues that the Court of Appeals "erroneously applied the foreseeability...