Tiedemann v. Radiation Therapy Consultants, P.C.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: JONES
• Citation: Tiedemann v. Radiation Therapy Consultants, P.C., 701 P.2d 440, 299 Or. 238 (Or. 1985)
• Decision Date: 11 June 1985
• Parties: Deanna J. TIEDEMANN and Ray Tiedemann, wife and husband, Respondents on review, v. RADIATION THERAPY CONSULTANTS, P.C., an Oregon professional corporation; M.J. Thompson, M.D.; K.L. Allen, M.D.; and Salem Hospital, an Oregon corporation, Petitioners on review. TC 135832; CA A31402; SC S31549; S31552.

Page 440

701 P.2d 440

299 Or. 238

Deanna J. TIEDEMANN and Ray Tiedemann, wife and husband Respondents on review, v. RADIATION THERAPY CONSULTANTS, P.C., an Oregon professional corporation; M.J. Thompson, M.D.; K.L. Allen M.D.; and Salem Hospital, an Oregon corporation, Petitioners on review.

TC 135832; CA A31402; SC S31549; S31552.

Supreme Court of Oregon In Banc.

Argued and Submitted May 8, 1985.

Decided June 11, 1985.

Cynthia S.C. Shanahan of Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, filed the petition and argued the cause for petitioners on review Radiation Therapy Consultants, P.C., et al. (SC S31552).

Keith J. Bauer of Parks & Bauer, Salem, filed the petition and argued the cause for petitioner on review Salem Hosp. (SC S31549).

John C. Pinkstaff, Newberg, argued the cause for respondents on review.

JONES, Justice.

The defendants in this medical malpractice action appeal from the decision of the Court of Appeals which held that the trial court erred in allowing the defendants' motion for summary judgment. 71 Or.App. 668, 693 P.2d 1346 (1985). We reverse the Court of Appeals and reinstate the trial court judgment in favor of the defendants.

The plaintiffs ¹ sued the defendant doctors, the professional corporation of which the doctors were members and the hospital for which they were agents in connection with alleged injurious treatment. The doctors administered radiation treatments to plaintiff Deanna Tiedemann who alleged that the treatments were performed negligently and that the doctors failed to apprise her of material risks entailed in the procedures.

Plaintiffs alleged that defendants were engaged to administer radiation therapy to Mrs. Tiedemann for treatment of cancer of the cervix. According to plaintiffs' amended complaint, prior to engaging the defendants, one of the defendants, a Dr. Thompson, told Mrs. Tiedemann that as a result of radiation therapy she might suffer loss of appetite, nausea, tiredness, diarrhea and loss of hair, but that defendants failed to inform her of the risk of injury to her small or large bowel. Her sole allegation concerning defendants' negligence in failing to obtain informed consent was as follows:

"Defendants Thompson, Allen, Williamson and Consultants breached their duty in failing to disclose to plaintiff all of the material risks involved in radiation therapy to be administered to plaintiff. If plaintiff had been informed of all the material risks of such treatments, she would not have submitted to the radiation therapy treatments and would not have sustained the injuries herein alleged to have occurred."

In addition to the allegation concerning so-called "informed consent," ² the complaint alleged other acts of negligence in four particulars as follows:

"1. They performed the radiation therapy on an 'extended field' of plaintiff's body, thus exposing more of plaintiff's intestinal tract than is properly exposed in treating cancer of the cervix.

"2. They administered radiation at a faster delivery rate than is commonly used for extended fields in treating cancer of the cervix.

"3. They failed to adjust the rate of delivery and volume of tissue exposed to radiation treatment as a precaution where the plaintiff had recently before had surgery which commonly causes bound loops of intestine fixed by adhesions.

"4. They failed to obtain an adequate history of plaintiff's previous condition before starting the administration of radiation so as to determine if the therapy program designed for plaintiff was appropriate."

The defendants moved for summary judgment on the basis of a deposition and an affidavit of Dr. Thompson. The affidavit states:

"1. I am a regularly licensed and practicing physician engaged in performing radiotherapy and I am a member of Radiation Therapy Consultants, P.C. I have personal knowledge of all matters contained herein.

"2. The treatment rendered by the individuals comprising the Radiation Therapy Consultants, P.C., including the description of the treatment and its possible effects, the testing performed prior to therapy and the irradiation therapy, was consistent with the degree of care, skill and diligence which is used by ordinarily careful physicians performing the specialty of radiotherapy in a same [or] similar circumstance in the state of Oregon. In my expert opinion, the treatment of Mrs. Tiedemann was not negligent."

Mrs. Tiedemann offered her own recollection as to the issue of informed consent in an affidavit. However, plaintiff offered no controverting medical expert evidence and admitted that no such evidence existed. The trial court granted summary judgment in favor of the defendants on both the negligence and informed consent issues.

The plaintiff appealed to the Court of Appeals, contending that Dr. Thompson's affidavit consisted solely of opinion evidence and that plaintiff was not required to controvert it to resist the summary judgment motions. The Court of Appeals, relying on its own decision in May v. Josephine Memorial Hospital, 70 Or.App. 620, 690 P.2d 1118 (1984), held that expert opinion evidence cannot be sufficient in itself to support a summary judgment on the issue of whether a defendant physician in a malpractice case has satisfied the applicable standard of care. In the case at bar, the Court of Appeals reasoned that the "credibility of an affiant's statement of fact is not the issue. The question is whether an expert's opinion can conclusively establish a fact, and that question was answered in May." 71 Or.App. at 672, 693 P.2d 1346 (emphasis in original).

We agree that the question is whether an expert's opinion can establish a fact conclusively, but we respectfully disagree with the Court of Appeals' conclusion on that issue. The expert's opinion in this case needs to be analyzed in connection with the Oregon Rules of Evidence. If the case were at trial, would Dr. Thompson be allowed to testify in accordance with the affidavit? The answer is "yes" and "no," because part of the affidavit is an opinion of fact and part an opinion of law. The former is proper; the latter is not.

We now turn to the statements in the affidavit:

"I am a regularly licensed and practicing physician engaged in performing radiotherapy and I am a member of Radiation Therapy Consultants, P.C. * * * "

This testimony is admissible under OEC 702 to demonstrate that this witness, albeit a party, possesses scientific, technical or other specialized knowledge qualifying her to testify in the form of an opinion. ³

Dr. Thompson's next statement, "I have personal knowledge of all matters contained herein," is a prelude to paragraph 2 of the affidavit which is referring to the treatment. In other words, the doctor is saying that she has personal knowledge of the treatment, its possible effects, and the testing performed prior to the therapy, as well as personal knowledge about the radiation therapy itself. This testimony is admissible under OEC 703, ⁴ which provides that the facts or data in a particular case upon which an expert bases an opinion may be those perceived by the expert at or before the hearing.

The affiant then concludes that based upon her perception the treatment "was consistent with the degree of care, skill and diligence" exercised by "ordinarily careful physicians performing the specialty of radiotherapy in the same [or] similar circumstances" in this state. This testimony is admissible under OEC 705, ⁵ which provides that an expert may testify in the form of an opinion without prior disclosure of the underlying facts or data. This testimony is an opinion about a fact. The opinion is not objectionable because it embraces an ultimate issue of fact to be decided by the trier of fact. OEC 704 ⁶ so provides.

The last sentence, "In my expert opinion, the treatment of Mrs. Tiedemann was not negligent," we consider to be a mere gratuity and neither adds nor subtracts from our discussion. It is a pure opinion which merely tells the jury which result to reach. Such testimony is directly condemned by the commentary to OEC 704 which, adopting the commentary to the identical federal rule, states:

" 'The abolition of the ultimate issue rule does not lower the bar so as to admit all opinions. Under Rule 701 and 702, opinions must be helpful to the trier of fact, and [under Rule 403 they must not unfairly prejudice, confuse or delay the proceedings]. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the matter of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.' McCormick section 12."

The plaintiff claims that the affidavit was nothing more than a general denial of negligence. Clearly, the affidavit was much more than a general denial, it was expert testimony on the key issues in the case.

Plaintiff relies on the case of W.R. Chamberlin & Co. v. Northwestern Agencies, 289 Or. 201, 611 P.2d 652 (1980), to justify their position that no controverting expert opinion affidavit is necessary in this summary judgment proceeding. In Chamberlin we held that because a jury may reject the uncontradicted opinion of a plaintiff's expert witness, denial of a directed verdict in favor of the plaintiff, i.e., the party bearing the burden of proof, was proper. 289 Or. at 207, 611 P.2d 652. Chamberlin does not help plaintiff in this case. It deals with the issue of unrebutted testimony of a plaintiff's expert to prove a fact in dispute, not with the failure to produce such testimony at a proceeding to determine whether disputed facts exist. I...