Tomlinson v. Metro. Pediatrics, LLC

• Citation: 412 P.3d 133,362 Or. 431
• Decision Date: 08 February 2018
• Docket Number: SC S063902 (Control, S063956),CC 110911971
• Parties: Kerry TOMLINSON and Scott Tomlinson, individually; and Kerry Tomlinson as guardian ad litem for her minor son Edward Tomlinson, Respondents on Review, v. METROPOLITAN PEDIATRICS, LLC, an Oregon limited liability corporation; Legacy Emanuel Hospital & Health Center, dba Legacy Emanuel Pediatric Development and Rehabilitation Clinic; and Mary K. Wagner, MD; Petitioners on Review, and Legacy Emanuel Hospital & Health Center, an Oregon nonprofit corporation, dba Legacy Emanuel Health Center; and Sharon D. Butcher, CPNP, Defendants. (S063902) (Control) Kerry Tomlinson and Scott Tomlinson, individually; and Kerry Tomlinson as guardian ad litem for her minor son Edward Tomlinson, Petitioners on Review, v. Metropolitan Pediatrics, LLC, an Oregon limited liability corporation; Legacy Emanuel Hospital & Health Center, dba Legacy Emanuel Pediatric Development and Rehabilitation Clinic; and Mary K. Wagner, MD, Respondents on Review, and Legacy Emanuel Hospital & Health Center, an Oregon nonprofit corporation, dba Legacy Emanuel Health Center; and Sharon D. Butcher, CPNP, Defendants. (S063956)
• Court: Oregon Supreme Court

362 Or. 431

412 P.3d 133

Kerry TOMLINSON and Scott Tomlinson, individually; and Kerry Tomlinson as guardian ad litem for her minor son Edward Tomlinson, Respondents on Review,

v.METROPOLITAN PEDIATRICS, LLC, an Oregon limited liability corporation; Legacy Emanuel Hospital & Health Center, dba Legacy Emanuel Pediatric Development and Rehabilitation Clinic; and Mary K. Wagner, MD; Petitioners on Review,andLegacy Emanuel Hospital & Health Center, an Oregon nonprofit corporation, dba Legacy Emanuel Health Center; and Sharon D. Butcher, CPNP, Defendants. (S063902) (Control)

Kerry Tomlinson and Scott Tomlinson, individually; and Kerry Tomlinson as guardian ad litem for her minor son Edward Tomlinson, Petitioners on Review,

v.Metropolitan Pediatrics, LLC, an Oregon limited liability corporation; Legacy Emanuel Hospital & Health Center, dba Legacy Emanuel Pediatric Development and Rehabilitation Clinic; and Mary K. Wagner, MD, Respondents on Review,andLegacy Emanuel Hospital & Health Center, an Oregon nonprofit corporation, dba Legacy Emanuel Health Center; and Sharon D. Butcher, CPNP, Defendants. (S063956)

CC 110911971

SC S063902 (Control, S063956)

Supreme Court of Oregon.

Argued and submitted November 15, 2016.

February 8, 2018

Michael J. Estok, Lindsay Hart, LLP, Portland, argued the cause and filed the briefs for petitioners on review/ respondents on review Metropolitan Pediatrics, LLC, and Mary K. Wagner, MD. Lindsey H. Hughes, Keating Jones Hughes, P.C., Portland, argued the cause and filed the briefs for petitioner on review/respondent on review Legacy Emanuel Hospital & Health Center. Also on the briefs was Hillary A. Taylor, Portland.

Kathryn H. Clarke, Portland, argued the cause and filed the briefs for respondents on review/petitioners on review Kerry Tomlinson and Scott Tomlinson. Also on the briefs were William A. Gaylord, Linda K. Eyerman, and Craig A. Nichols, Portland.

Travis Eiva, Eugene, filed the brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, and Flynn, Justices, and Brewer and Landau, Senior Justices pro tempore.^**

BREWER, S. J. pro temporeThis is an appeal from a trial court judgment dismissing plaintiffs' complaint under ORCP 21 A(8) for failure to allege facts sufficient to state claims for relief. Plaintiffs Kerry and Scott Tomlinson (the parents) and their son, T, brought separate negligence claims against defendants Mary K. Wagner, MD, Metropolitan Pediatrics, LLC, and Legacy Emanuel Hospital & Health Center. In their respective claims, the parents and T alleged that defendants provided medical services to the parents' older son, M, failed to timely diagnose M's genetic disorder, and failed to inform the parents of that disorder.¹ In addition, the parents and T each alleged that "[the parents] relied on the defendants, and each of them, to exercise reasonable care, skill and diligence on their behalf" and that "defendants had an ongoing duty to properly diagnose [M's] condition from November 16, 2004 until the diagnosis of Duchenne's muscular dystrophy

[DMD] was finally made in October 2010." The parents and T further alleged that, "[h]ad defendants, and each of them, timely diagnosed [M's] DMD, [the parents] would not have produced another child suffering from [DMD]." The parents and T each alleged that defendants' negligence caused them to suffer economic and noneconomic damages.

The trial court entered a judgment dismissing the complaint on the ground that neither the parents nor T were patients of defendants and, therefore, the court reasoned, defendants owed no obligation of professional care toward them. The Court of Appeals reversed that judgment as to the parents but affirmed as to T. For the reasons stated below, we affirm the decision of the Court of Appeals, and we reverse in part and affirm in part the trial court judgment dismissing this action.

I. BACKGROUND

In reviewing a judgment dismissing a complaint under ORCP 21 A(8), we assume the truth of all well-pleaded factual allegations in the complaint and draw all reasonable inferences from those allegations in favor of plaintiffs. Deckard v. Bunch , 358 Or. 754, 757, 370 P.3d 478 (2016). We set out the pertinent allegations in the complaint in accordance with that standard.

The parents' son, M, was born in 2003. The parents took M to defendants for patient care in November 2004 after he began exhibiting developmental abnormalities. Over the course of many visits, defendants "undertook to assess the cause of [M]'s developmental abnormalit[ies]," but failed to do so. While still not knowing the cause of M's continuing developmental abnormalities, the parents conceived another child in early 2008. That child, T, a son, was born in November 2008.

In October 2010, the cause of M's developmental abnormalities was diagnosed as Duchenne muscular dystrophy

(DMD). According to the complaint, DMD is an inheritable genetic disorder with severe and progressively debilitating symptoms, including muscle weakness and wasting, loss of the ability to walk (usually by age 12), progressive paralysis, and premature death. Those symptoms typically affect only males with the defective gene. Females with the defective gene are typically only carriers who do not show symptoms of DMD. If a couple has a child with DMD, then there is a fifty-percent chance that other male children born to that couple will also have DMD. After M's diagnosis, T also was diagnosed with DMD.

In their respective claims, the parents and T alleged that defendants negligently failed to perform appropriate diagnostic testing for the symptoms that M was presenting and, therefore, failed to timely diagnose M with DMD. According to the parents and T, because defendants failed to timely diagnose M, defendants failed to timely inform the parents of the reproductive risks resulting from M's diagnosis. As noted, the parents and T alleged that if defendants had "timely diagnosed [M]'s DMD, [the parents] would not have produced another child suffering from [DMD]."

The parents and T further alleged that, as a result of defendants' negligence, they have suffered significant financial and emotional burdens. Specifically, the parents sought economic damages for the cost of T's medical care, education, and other support that they have already incurred and expect to incur until he reaches adulthood. They also sought noneconomic damages for emotional distress. T separately sought economic damages for his medical care and support in adulthood and for his lost future earning capacity. Like the parents, T also claimed noneconomic damages for emotional distress.

In the trial court, defendants moved to dismiss both claims under ORCP 21 A(8). Defendants asserted numerous reasons for dismissal. As noted, the trial court granted the motion on the ground that neither the parents nor T alleged that they had been patients of defendants. In an initial letter opinion, the trial court characterized the complaint as asserting medical negligence claims and explained that, "to survive dismissal, a complaint must include an allegation of a professional relationship between a physician and patient in a medical negligence case." Because the parents and T had conceded that only the parents' first-born son, M, had been defendants' patient, the trial court therefore dismissed both claims. The court also ruled that T's claim was not actionable because "there is no yardstick by which to measure his damages."

In a subsequent letter opinion, the trial court clarified that its dismissal of T's claim was based on the premise that Oregon law does not recognize a claim by a child asserting that he or she never should have been born. The court explained that it was dismissing the parents' claim because, unlike similar claims recognized in other jurisdictions, the complaint in this case did not allege that "the parents [were] treated with, or relied upon, the advice of [defendants] in deciding whether to conceive a second child." The trial court further ruled that, even if the parents had alleged sufficient facts to state a claim for relief, such a claim could not include noneconomic damages for emotional distress, because "[n]o physical impact or duty to plaintiffs to avoid emotional harm has been alleged." Based on those rulings, the trial court entered judgment in favor of defendants.

Plaintiffs appealed that judgment to the Court of Appeals, which affirmed the dismissal of T's claim but reversed the dismissal of the parents' claim, including the dismissal of their request for noneconomic damages.

Tomlinson v. Metropolitan Pediatrics, LLC , 275 Or. App. 658, 366 P.3d 370 (2015). In its analysis, the Court of Appeals first addressed whether the trial court properly had dismissed the parents' and T's claims for failing to allege a physician-patient relationship. The Court of Appeals framed the issue as being whether "a plaintiff is categorically precluded from stating a negligence claim against a physician where the professional standard of care owed to a patient requires the physician to exercise care on behalf of nonpatients." Id . at 673, 366 P.3d 370. The Court of Appeals disagreed with the trial court's ruling on that issue, holding that "the absence of a physician-patient relationship [does] not preclude nonpatients from recovering in negligence against the physician." Id.

The Court of Appeals then addressed issues specific to the parents' claim. As relevant to our review, the Court of Appeals agreed with the trial court's conclusion that "there are no allegations of treatment, consultation, or reproductive or genetic counseling or screening involving the [parents]. Further, there are no allegations of affirmative misdiagnoses or representations on which the [parents] relied in deciding to conceive another child." Id. at 679, 366 P.3d 370 n. 10. The court opined, however, that those omissions were not critical: "[W]here defendants negligently failed to...