Whinston v. Kaiser Foundation Hosp.

• Decision Date: 03 May 1990
• Citation: 788 P.2d 428,309 Or. 350
• Parties: James Pierce WHINSTON, Respondent/Cross-Petitioner on Review, v. KAISER FOUNDATION HOSPITAL, a California corporation; Northwest Permanente, P.C., an Oregon corporation, and the Permanente Clinic, a partnership, Petitioners/Cross- Respondents on Review. TC A8212-07341; CA A41750; SC S35756, S36014.
• Court: Oregon Supreme Court

Page 428

788 P.2d 428

309 Or. 350

James Pierce WHINSTON, Respondent/Cross-Petitioner on Review, v. KAISER FOUNDATION HOSPITAL, a California corporation Northwest Permanente, P.C., an Oregon corporation and the Permanente Clinic, a partnership Petitioners/Cross- Respondents on Review.

TC A8212-07341; CA A41750; SC S35756, S36014.

Supreme Court of Oregon.

Argued and Submitted May 4, 1989.

Decided March 6, 1990.

Reconsideration Denied May 3, 1990.

John R. Faust, Jr., Portland, argued the cause for petitioners/cross-respondents on review. With him on the petition and response to cross-petition was Schwabe, Williamson & Wyatt, Portland.

John Paul Graff, Portland, argued the cause for respondent/cross-petitioner on review. With him on the cross-petition and responses to petition was Graff & O'Neil, Portland.

Before PETERSON, C.J., and LINDE, ^* CARSON, JONES, GILLETTE and FADELEY, JJ.

CARSON, Justice.

In this medical malpractice case, defendants are two corporations and a partnership engaged in providing health care. Plaintiff was a patient of defendants' agents: Dr. Porter, a gastroenterologist; ¹ Dr. Gregory, a psychiatrist; and Dr. Levine, a psychologist. Plaintiff claimed that these agents negligently treated his liver ailment.

At the close of plaintiff's case, the trial court directed verdicts for defendants on claims involving Dr. Gregory and Dr. Levine. Claims involving Dr. Porter, the gastroenterologist, were submitted to the jury. By general verdict, the jury awarded plaintiff $3,183,845 in damages. The trial court entered judgment for plaintiff. Later, upon defendants' motion for judgment notwithstanding the verdict and alternative motion for new trial, the trial court granted defendants a judgment notwithstanding the verdict for lack of evidence that Dr. Porter's conduct fell below the standard of care for gastroenterologists.

The Court of Appeals reversed and instructed the trial court to enter judgment on the verdict. ² Whinston v. Kaiser Foundation Hospital, 93 Or.App. 528, 763 P.2d 177 (1988). We review: (1) The effect of remarks made during oral argument in the Court of Appeals; (2) defendants' challenge to the pleading sufficiency of an allegation of negligence; (3) whether there was evidence to support the verdict; and (4) the effect of jury consideration of an allegation unsupported by the evidence. We reverse the judgment of the trial court and, in part, the decision of the Court of Appeals, and remand this case to the trial court for a new trial.

I. REMARKS DURING ORAL ARGUMENT IN THE COURT OF APPEALS

Three allegations of negligence were submitted to the jury involving Dr. Porter: (1) Failure to perform or to obtain a liver biopsy; (2) failure to diagnose plaintiff's cirrhosis; and (3) failure to diagnose plaintiff's vitamin A toxicity. After a verdict was returned in plaintiff's favor, the trial court determined that there was no evidence that Dr. Porter's conduct fell below the standard of care on any allegation and entered judgment notwithstanding the verdict. Plaintiff assigned the ruling as error. The Court of Appeals found evidence to support the single allegation that Dr. Porter negligently failed to diagnose plaintiff's cirrhosis.

According to defendants, the Court of Appeals should not have considered whether evidence supported this particular allegation because plaintiff "conceded" during oral argument in the Court of Appeals that there was only one issue in this case, based on a different allegation, viz.: whether Dr. Porter negligently failed to perform or to obtain a liver biopsy. If defendants are correct, the Court of Appeals erred when it reinstated the verdict because plaintiff withdrew from appellate review the one allegation for which that court found supporting evidence: the allegation that Dr. Porter negligently failed to diagnose plaintiff's cirrhosis. The effect of defendants' argument is that the failure by the Court of Appeals to accept the concession is an error of law.

Defendants rely on the following remarks made by plaintiff's counsel during oral argument in the Court of Appeals:

"The case was submitted to the jury on three specifications of negligence. * * * As the defendants point out, correctly, the latter two allegations, the failure to diagnose allegations, are really allegations of the results. The failure was to do a liver biopsy. * * * So we're really talking here about a single issue: Was there sufficient evidence that a liver biopsy should have been done, that a liver biopsy was required by the standard of care, to submit the case to the jury on all three allegations of negligence."

On their face, these remarks mean what defendants say they mean: Plaintiff's counsel conceded that the sole issue was whether the evidence supported the allegation that Dr. Porter negligently failed to perform or to obtain a liver biopsy.

Plaintiff's counsel, however, did not explicitly withdraw or abandon plaintiff's assignment of error--during oral argument or otherwise. ³ As previously stated, plaintiff assigned error to the trial court's ruling, on all three allegations, that there was no evidence that Dr. Porter's conduct fell below the standard of care. Remarks by plaintiff's counsel during oral argument in the Court of Appeals characterized the record, but the Court of Appeals (and this court) properly look beyond that characterization--at least absent an explicit withdrawal of the assignment of error, and perhaps even then--to determine whether the record supports the relief requested in the assignment of error. See Shop. Centers v. Stand. Growth Prop., 265 Or. 405, 498 P.2d 781, 509 P.2d 1189 (1973) (court disregarded a concession after it examined the record and concluded that the evidence was inconsistent with the concession). Absent an explicit withdrawal of an assignment of error, ⁴ we do not construe remarks at oral argument as defeating a request for relief when the record supports the relief requested in the assignment of error.

We turn to defendants' challenge to the sufficiency of the allegation that Dr. Porter negligently failed to diagnose plaintiff's cirrhosis.

II. THE SUFFICIENCY OF PLAINTIFF'S NEGLIGENCE ALLEGATION

In his fourth amended complaint, plaintiff alleged that Dr. Porter

" * * * was negligent in the treatment of Plaintiff from December 1, 1977 through and including December 1, 1982, in one or more of the [following] particulars:

* * * * * *

"5. In failing to diagnose Plaintiff's cirrhosis of the liver."

Defendants argue that this pleading is deficient. According to defendants, a "mere failure to diagnose is not negligence. * * * [T]he failure to diagnose is only a bad result that is actionable only where it is caused by some departure from standards of due care." Defendants argue that plaintiff should have alleged how Dr. Porter was negligent, i.e., that Dr. Porter failed to perform a "work-up" conforming to the standard of care. They argue that plaintiff recognized the deficiency in his pleading when, during trial, he moved to amend to plead a "defective work-up." The motion was denied. According to defendants, the Court of Appeals erred when it reversed the trial court "on evidence of facts (a defective 'work-up') that plaintiff did not plead and recognized that he had to plead."

Even if we assume that defendants are correct in their assertion that plaintiff's pleading is deficient, such assertion will not aid defendants here. The flaw in defendants' argument is that it runs afoul of ORCP 23 B. ⁵ Under that rule, a party may amend a pleading to conform to the evidence, thus raising an issue not raised by the pleading. A party may also amend to raise an issue "tried by express or implied consent of the parties." Moreover, ORCP 23 B provides that failure to amend "does not affect the result of the trial." Thus, a pleading for all practical and legal purposes is automatically ⁶ amended whenever an issue not raised by the pleading is tried by consent. ⁷

Here, plaintiff introduced testimony that Dr. Porter negligently failed to perform a "work-up." Dr. Falkenstein, a gastroenterologist, testified that: (1) He was familiar with the standard of care of a "reasonably careful practicing gastroenterology specialist"; (2) Dr. Porter's conduct fell below "the accepted standard of practice and care" in several respects, such as the "failure to initiate an orderly evaluation of potential digestive disease including but not limited to, liver disease"; (3) diagnostic tests "would have led to the uncovery [sic ] of a liver disease"; (4) the failure to begin testing caused a delay in diagnosing the cirrhosis; and (5) without the delay, the liver disease could have been "halted [or] reversed." Defendants did not object to this testimony.

By not objecting to Dr. Falkenstein's testimony, defendants, in the circumstances of this case, effectively consented to the trial of the allegation that Dr. Porter negligently failed to perform a work-up relating to the diagnosis of plaintiff's cirrhosis. As the Court of Appeals found, Dr. Falkenstein's testimony was some evidence to support the allegation. Accordingly, we turn to whether the evidence supported the verdict.

III. WHETHER THE EVIDENCE SUPPORTED THE VERDICT

The Court of Appeals found evidence in the record to support the allegation that Dr. Porter negligently failed to diagnose plaintiff's cirrhosis, one of three allegations submitted to the jury. That court determined that Dr. Falkenstein's testimony was some evidence that Dr. Porter's conduct fell below the standard of care. ⁸ Whinston v. Kaiser Foundation Hospital, supra, 93 Or.App. at 532, 763 P.2d 177. We agree. The granting of the judgment notwithstanding the verdict was error.

Having so found, the Court of Appeals reversed the trial court and remanded with instructions to enter judgment for plaintiff on the verdict. In reaching this disposition, the Court of Appeals, noting that a general verdict was returned by...