Son v. Ashland Cmty. Healthcare Serv.

Decision Date15 December 2010
Docket Number051623L3; A137065.
Citation239 Or.App. 495,244 P.3d 835
PartiesKatrina D. SON, as personal representative for the Estate of Sara Joy Burnson, deceased, Plaintiff-Appellant Cross-Respondent, v. ASHLAND COMMUNITY HEALTHCARE SERVICES, dba Ashland Community Hospital, Defendant, and Paul Rostykus, MD; and John Delgado, MD, Defendants-Respondents Cross-Appellants.
CourtOregon Court of Appeals

Kathryn H. Clarke argued the cause for appellant-cross-respondent. With her on the briefs were Linda K. Eyerman, William A. Gaylord, and Gaylord Eyerman Bradley, P.C.

Lindsey H. Hughes, Portland, argued the cause for respondent-cross-appellant Paul Rostykus, MD. Janet M. Schroer, Portland, argued the cause for respondent-cross-appellant John Delgado, MD. With them on the joint briefs were Susan J. Mahoney and Keating Jones & Hughes PC, and Marjorie A. Speirs and Hoffman, Hart & Wagner, LLP.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

This appeal arises out of a jury verdict in a wrongful death case against two physicians. The jury returned a verdict for plaintiff, assigning fault to defendants, decedent, and decedent's father. Plaintiff appeals, asking us to reverse the trial court's judgment to the extent fault is attributed to decedent and decedent's father, and to remand the case to the trial court for the entry of judgment allocating 50 percent fault to each defendant. Defendants cross-appeal, challenging the court's (1) pretrial dismissal of an affirmative defense that decedent was comparatively at fault for consuming the substances that led to her death, and (2) denial of defendants' various motions for relief from judgment and a new trial due to juror misconduct. We agree that the court erred in submitting to the jury the issue of the comparative fault of decedent's father and, accordingly, reverse and remand for entry of a modified judgment.

I. FACTS

We state the following undisputed facts to provide an overview of the case; however, given the multiple assignments of error and the different standards of review that apply, we have included additional facts elsewhere in the opinion as appropriate. Sixteen-year-old Sara Joy Burnson attended an end-of-the-season party for her softball team, which was intended to be an overnight sleepover at a teammate's house, but surreptitiously became an unsupervised party at a local motel. Her father, David Burns, found out about the unsupervised nature of the party, contacted Sara, and told her to be home by her curfew. When she arrived home after her curfew, Sara and Burns argued briefly. At some point after Burns went to bed, Sara ingested an unknown quantity of pills, including leftover pills prescribed to Burns that he had stored in a box in the garage. The next morning Sara was incoherent, uncoordinated, and vomiting. Burns took her to the emergency room at Ashland Community Hospital at approximately 11:00 a.m. At the time of her arrival, there remained confusion as to both the identification and quantity of the substances that Sara had taken. The hospital records indicate that Sara informed a nurse that shehad consumed some alcohol and cocaine at the party. In addition, Burns's fiancée and Sara's friend gathered loose pills and empty pill bottles from the house and took them to the hospital. One of the empty pill bottles was labeled as Propacet, which is a medication containing acetaminophen and propoxyphene.

Defendant Rostykus was the emergency room physician at the time of Sara's admission. He initially administered Narcan to combat any narcotics in her system and diagnosed Sara with acetaminophen toxicity related to a poly-drug overdose. He suggested that she be admitted to the hospital for n-acetylcysteine treatment for acetaminophentoxicity and continued monitoring for a narcotic overdose. He provided her care until approximately 2:00 p.m. when Sara was transferred to the Intensive Care Unit (ICU) and responsibility for her care shifted to defendant Delgado. Delgado monitored Sara, but her condition quickly deteriorated around 5:00 p.m., and she died shortly thereafter. The Oregon State Medical Examiner and the Jackson County Medical Examiner listed the official cause of death as "sudden cardiac arrhythmia due to propoxyphene overdose."

Plaintiff Katrina Son, Sara's mother and the personal representative of Sara's estate, filed a wrongful death action on behalf of the estate against the hospital and defendants.1 She alleged that defendants provided negligent treatment to Sara that directly resulted in her death. In particular, plaintiff alleged that defendants were negligent in (1) failing to perform an adequate assessment, (2) failing to make or follow an appropriate treatment plan, and (3) failing to transfer her to another hospital. Defendants raised two comparative fault affirmative defenses in their answers. They alleged that Sara caused or contributed to her death (1) by consuming a variety of substances that eventually led to her death, and (2) by failing to accurately tell her family, the nurses, or defendants what substances she had consumed, including the quantities consumed, and the time that she consumed each.

During pretrial depositions, defendants deposed a nurse at Sara's school who indicated that Sara had made a possible suicide gesture two months before her death by taking a number of unidentified pills. Defendants then moved to amend their answers to add an additional affirmative defense of comparative fault, alleging that Burns caused or contributed to Sara's death because he failed to take adequate preventive measures after learning of her prior suicide attempt. In particular, defendants contended that he failed to secure prescription and nonprescription drugs in the home and failed to supervise Sara at the unsanctioned softball party.

Plaintiff attacked defendants' affirmative defenses both before and during the trial. Before trial, plaintiff filed an ORCP 21 motion to strike defendants' affirmative defense that Sara was at fault for consuming the substances that led to her hospitalization. Plaintiff also moved for summary judgment on defendants' "failure to tell" affirmative defense, arguing that because the medical records demonstrated that defendants knew or should have known that Sara had ingested Propacet, no objectively reasonable juror could return a verdict for defendants on that issue. Finally, plaintiff opposed defendants' motions to amend their answers to add the affirmative defense of Burns's comparative fault.

The trial court granted plaintiff's ORCP 21 motion to strike the affirmative defense regarding Sara's consumption of the substances that led to her hospitalization, denied plaintiff's motion for summary judgment on the "failure to tell" defense because it found that there were genuine issues of material fact, and granted defendants' motions to file amended answers.

Plaintiff then filed an ORCP 21 E motion to strike allegations of comparative fault by Burns as insufficient to state a defense as a matter of law. The court denied that motion.

The case eventually proceeded to a three-week jury trial. At trial, plaintiff presented evidence and expert testimony in support of her allegations that defendants failed to meet the standard of care in their diagnosis and treatment of Sara, and that their breach of that standard, to a degree ofreasonable medical probability, caused Sara's death. Defendants defended on the theory, also with supporting expert testimony, that the cause of death was not propoxyphene toxicity and that Sara was appropriately treated for acetaminophen toxicity given the information that they had available and, further, that their treatment plan was also within the standard of care for a propoxyphene overdose.

At the close of evidence, plaintiff moved for a directed verdict on the "failure to tell" affirmative defense, arguing that there was evidence that the substances Sara ingestedwere identified in the medical records; that there was no evidence that, even if Sara had informed someone of the substances and the amounts that she had ingested, defendants would have treated her differently; and that there was no evidence that, had Sara communicated the details of her ingestion to defendants, it would have made a difference in the ultimate outcome. The court denied the motion.

The jury returned a verdict for plaintiff, assessing fault as follows: Rostykus, 30 percent; Delgado, 30 percent; Sara, 25 percent; Burns, 15 percent. The jury awarded $240,000 in economic damages and $500,000 in noneconomic damages. Accordingly, the court reduced the jury award by the 40 percent attributed to Sara and Burns and entered a general judgment against each defendant for 30 percent of the overall award: $222,000.

After the court entered the general judgment, plaintiff moved for judgment notwithstanding the verdict, requesting that the fault attributed to Sara and Burns be voided and judgment entered against each defendant for one half of the total damages assessed by the jury. The court denied plaintiff's motion. Defendants also filed post-trial motions: a motion for relief from judgment, a motion to interview jurors, and a motion for a new trial—all based on alleged juror misconduct. The court denied those motions. Subsequently, defendants again moved for relief from judgment and for permission to interview jurors. That motion was also denied. Plaintiff appealed, and defendants cross-appealed.

On appeal, plaintiff takes issue with the trial court's decision to allow the jury to consider the alleged comparative fault of Sara and Burns. Defendants, in their cross-appeal, contend that the trial court improperly struck their affirmative defense that Sara was comparatively at fault for consuming the substances that led to her medical condition and ultimately her death. In addition, defendants contend that the court should have granted their motions for relief from...

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