Joseph L. Smith v. Providence Health & Services - Oregon d/b/a Providence Hood River Memorial Hospital, d/b/a Providence Medical Group, et al.

After suffering permanent brain damage from a

stroke, plaintiff Joseph Smith brought this medical negligence

action, alleging that, because doctors had not taken

proper steps to follow up on his complaints of stroke symptoms,

he lost a chance for treatment that, in one-third of

cases, provides a patient with no or reduced complications

following the stroke. Reviewing the complaint on its face,

the trial court agreed with defendants that plaintiff had

failed to state a claim under Oregon law. The court entered

a judgment dismissing the complaint with prejudice, which

the Court of Appeals affirmed. Smith v. Providence Health &

Services - Oregon, 270 Or App 325, 347 P3d 820 (2015). On

review, the question presented is whether Oregon law permits

a plaintiff who has suffered an adverse medical outcome

resulting in physical harm to state a common-law medical

negligence claim by alleging that the defendant negligently

caused a loss of his or her chance at recovery. As explained

below, we conclude, as a matter of first impression, that a

medical negligence claim based on a loss-of-chance theory

of injury in the circumstances presented is cognizable under

Oregon common law. Accordingly, we reverse and remand

for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Because the trial court dismissed the action at the

pleading stage, we describe the facts by assuming the truth

of facts that plaintiff alleged in his complaint and by giving

him the benefit of reasonable inferences from those facts.

Lowe v. Philip Morris USA, Inc., 344 Or 403, 407 n 1, 183

P3d 181 (2008). On a Friday afternoon in 2011, plaintiff,

then 49 years old, went to the emergency room at Providence

Hood River Memorial Hospital, which defendant Providence

Health & Services - Oregon operated. He arrived in the

emergency room less than two hours after he began experiencing

visual difficulties, confusion, slurred speech, and

headache. Plaintiff was worried that he might be having a

stroke.

Defendant Dessiter, a physician affiliated with

defendant Hood River Emergency Physicians, LLC, attended

plaintiff in the emergency room. Dessiter did not perform

Cite as 361 Or 456 (2017) 459

a complete physical examination or thorough neurological

examination of plaintiff. Plaintiff underwent a CT scan,

which showed no bleeding in his brain, making him a candidate

for “TPA treatment of a stroke.”1 A radiologist recommended

that, if symptoms persisted, an MRI should be considered.

Dessiter concluded that plaintiff’s symptoms were

caused by taking a sleep aid, told him he needed to have his

eyes examined, and discharged him. She did not advise him

to take aspirin.

On Saturday night, when Dessiter was again working,

plaintiff returned to the Providence emergency room.

Plaintiff reported that the pain in his head had significantly

increased and he was still having visual problems. Again,

Dessiter did not perform a complete physical examination

and did not perform a thorough neurological examination.

She diagnosed plaintiff with a mild headache and visual

disturbance and gave him a prescription for Vicodin. She

again advised him to see an eye doctor. She did not advise

plaintiff to take aspirin.

On Monday, plaintiff attended a follow-up appointment

with defendant Harris, a family practice physician

affiliated with defendant Hood River Medical Group, PC.

Harris ordered an MRI, but not on an expedited basis. He

did not advise plaintiff to take aspirin.

When an MRI was done at the end of the week, it

showed that plaintiff had suffered substantial brain damage

from a stroke. Plaintiff’s stroke-related injuries are permanent.

Among other things, he now has slurred speech,

limitations on his ability to perform activities of daily living,

and cognitive impairments that prevent him from working.

Plaintiff sued the doctors who had attended him,

their respective medical groups, and Providence for medical

negligence, alleging a loss-of-chance negligence theory.

In his second amended complaint, plaintiff alleged that

Providence and Dessiter were negligent in failing to conduct

1 The abbreviation TPA stands for tissue plasminogen activator. Stedman’s

Medical Dictionary 1850 (27th ed 2000). TPA “is a thrombolytic agent that helps

to break apart blood clots.” Joshi v. Providence Health System, 342 Or 152, 156,

149 P3d 1164 (2006).

460 Smith v. Providence Health & Services

thorough physical and neurological examinations, to order

an MRI, to start plaintiff on aspirin, and to take various

other actions. Plaintiff alleged that Providence and Harris

were negligent in failing to order an MRI on an expedited

basis and to start plaintiff on aspirin. Plaintiff then alleged

that, “[a]s a result of the negligence of [Providence, Dessiter,

and Harris], on a more probable than not basis, [plaintiff]

lost a chance for treatment which, 33 percent of the time,

provides a much better outcome, with reduced or no stroke

symptoms.”2 Plaintiff further alleged that, “[a]s a result of

defendants’ negligence and his injuries,” he “lost his ability

to work” and “has serious and permanent injuries.” He

requested damages “for lost wages or impairment of earning

capacity” and “non-economic damages.”

In a professional negligence claim, a plaintiff must

allege and prove the following: “(1) a duty that runs from

the defendant to the plaintiff; (2) a breach of that duty; (3) a

resulting harm to the plaintiff measurable in damages; and

(4) causation, i.e., a causal link between the breach of duty

and the harm.” Zehr v. Haugen, 318 Or 647, 653-54, 871 P2d

1006 (1994). Ultimately, the plaintiff must prove causation

by a “reasonable probability.” Sims v. Dixon, 224 Or 45, 48,

355 P2d 478 (1960).

Dessiter and her medical group, Harris and his medical

group, and Providence filed motions to dismiss plaintiff’s

complaint under ORCP 21 A(8). All defendants argued

that plaintiff had failed to allege ultimate facts sufficient

to constitute a claim on two grounds. First, they argued,

plaintiff had not alleged a recognized harm because Oregon

law does not permit recovery for loss of chance. Defendants

asserted that this court had rejected the loss-of-chance theory

in Joshi v. Providence Health System, 342 Or 152, 149

P3d 1164 (2006), a statutory wrongful death case in which

the personal representative of a patient alleged that health

care providers had failed to diagnose the patient’s stroke,

leading to his death. Id. at 155. Second, defendants argued

that plaintiff’s negligence theory, if recognized in Oregon,

2 Plaintiff’s complaint contains two identical allegations that “Providence

and Dessiter” caused the loss of the chance, but the parties have treated the second

instance as an allegation that Harris caused plaintiff to lose the chance.

Cite as 361 Or 456 (2017) 461

would subvert the requirement that a plaintiff in a medical

malpractice case must plead and prove a causal connection

between the defendant’s breach of duty and the plaintiff’s

injuries.

The trial court granted defendants’ motions to dismiss

but allowed plaintiff 10 days in which to replead the

complaint. When plaintiff failed to amend his complaint, the

trial court entered a general judgment dismissing the action

with prejudice.

Before the Court of Appeals, the parties again disputed

whether loss of chance had been rejected or recognized

as a negligence theory in Oregon and whether plaintiff’s theory

conflicted with pleading requirements for the element of

causation in a professional negligence claim. Citing Harris

v. Kissling, 80 Or App 5, 721 P2d 838 (1986), and distinguishing

Joshi, plaintiff argued that Oregon recognizes loss

of chance “in medical negligence actions for injuries” and

that many other states allow claims for loss of chance.

The Court of Appeals resolved plaintiff’s appeal

based on both this court’s decision in Joshi and plaintiff’s

allegations concerning causation. In a footnote, the Court of

Appeals declined plaintiff’s invitation to conclude that the

loss of a chance for an often-effective treatment and recovery

is the cognizable harm caused by a negligent failure to act.

Smith, 224 Or App at 329 & n 3. Instead, the court viewed

plaintiff’s injury as his stroke-related brain damage and

determined that the causation requirement for the wrongful

death statute in Joshi was the same requirement demanded

by the common law for causation in a medical negligence

claim. Smith, 270 Or App at 331-32. The court concluded

that plaintiff’s allegation that he lost a 33 percent chance

for a better outcome was insufficient to allege that “there is

a reasonable probability that defendants’ alleged negligent

omissions resulted in his injury.” Id. at 332. Accordingly, the

court affirmed. Id.

Plaintiff sought review, arguing, in part, that the

Court of Appeals erroneously had rejected loss of chance

as a separate compensable injury, which then led the court

to conduct an off-kilter analysis of causation. We granted

review to decide whether Oregon law permits plaintiff, who

462 Smith v. Providence Health & Services

has suffered physical harm, to state a common-law medical

negligence claim by alleging that defendants negligently

caused the loss of his 33 percent chance at recovery from his

stroke.

II. ANALYSIS

A. Preservation

Before reaching the parties’ substantive arguments,

we address defendants’ contention that plaintiff failed to

adequately preserve his argument that the loss of a 50 percent

or lesser chance for medical recovery is a discrete, compensable

harm. Defendants’ arguments, which have morphed

over time, are unavailing.

Defendants first raised concerns about preservation

before this court, when opposing plaintiff’s petition

for review. At that point, defendants acknowledged that, in

the trial court, plaintiff had argued in favor of recognizing

loss of chance as an injury. Even so, defendants contended,

plaintiff’s reference to Dickhoff ex rel Dickhoff v. Green,

836 NW2d 321, 329-30 (Minn 2013) (approving the loss-ofchance

theory), was too “skimpy and opaque.”

Defendants since appear to have pushed that argument

to the sidelines, and rightly so. The question whether

an argument has been preserved “inevitably will turn on

whether, given the particular record of a case, the court

concludes that the policies underlying the [preservation]

rule have been sufficiently served.” State v. Parkins, 346 Or

333, 341, 211 P3d 262 (2009). This court has also explained

that two major policies underlie the rule of preservation:

judicial efficiency and fairness. Peeples v. Lampert, 345 Or

209, 219-20, 191 P3d 637 (2008). Those preservation policies

were served in this case: First, in his complaint, plaintiff

expressly alleged that he lost his chance for recovery.

Second, in opposing defendants’ Rule 21 motions, plaintiff

argued (among other things) that “the loss of his chance for

a better outcome is absolutely an injury to his person” and

asked the trial court “to allow him to present that harm to a

jury.”

More recently, in their brief before this court, defendants

assert that the issue whether the loss of the chance

Cite as 361 Or 456 (2017) 463

for recovery is a compensable injury was not before the trial

court, because plaintiff had failed to clearly allege a compensable

injury. As defendants view it, the complaint had

to, but did not, contain the proper allegation of damages,

namely, damages for emotional or psychic injury experienced

because of losing a chance of recovery. Instead, defendants

assert, the only claim plaintiff presented was one for “physical

injury damages.” Although their argument sounds like a

challenge to the adequacy of plaintiff’s pleading, defendants

characterize it as a preservation argument. Regardless of

whether we agree, that position is not well taken.

First, defendants’ position depends on two faulty

premises: (1) the only possible kind of damage that a plaintiff

who proves a loss of chance can assert is damage due to

emotional or psychic injury and (2) plaintiff did not allege

a right to recover those sorts of noneconomic damages. As

we discuss later, courts have allowed other damage theories

under the auspices of a loss-of-chance theory. And, even

were defendants correct that only noneconomic damages

are cognizable upon proof of a defendant’s liability for a loss

of chance, plaintiff alleged that he had suffered a specific

amount of “non-economic damages.” Moreover, defendants’

position presumes that the trial court dismissed based on

the nuts and bolts of the pleading, yet the court dismissed

the action because it rejected the very idea that a loss-ofchance

theory of recovery was available in Oregon. Thus,

the availability of loss of chance as a theory of recovery was

squarely before the trial court and the Court of Appeals and

is preserved for our review.

B. An Issue of First Impression

Throughout the litigation, the parties have disputed

whether, in Joshi, this court already resolved the

question whether a loss of chance is cognizable under

Oregon law, and so we begin by clarifying the matter.

Plaintiff is correct that we have not yet decided whether an

injured plaintiff alleging common-law medical malpractice

may recover for loss of a chance at a better medical outcome.

The feature distinguishing Joshi from this case is

the wrongful death statute, ORS 30.020, which was at the

heart of that case.

464 Smith v. Providence Health & Services

In Joshi, the plaintiff brought a wrongful death

action against multiple health care providers, alleging that

they had failed to timely diagnose and treat her husband’s

stroke with medications and that their negligence led to his

death. 342 Or at 155. The trial court directed a verdict in

favor of the defendants when the plaintiff’s medical expert

testified that timely administration of the medications would

have increased the decedent’s chance of survival by, at most,

30 percent. Id. at 156. One of the questions on review before

this court was whether the expert’s testimony had created a

jury question as to causation. Id. at 157.

Our decision turned on the provision in ORS 30.020

that a wrongful death action can be maintained if “the

death of a person is caused by the wrongful act or omission

of another.” (Emphasis added.) After examining the text

and context of the wrongful death statute, this court held in

Joshi that the statute “requires that a plaintiff prove that a

defendant’s negligent act or omission caused the decedent’s

death,” id. at 163 (emphasis in original), not an increase in

the risk of death, id. at 164. Because the expert could testify

only that defendants’ conduct had increased the risk of

death but not that, to a reasonable probability, defendants’

conduct had caused the death, the court concluded that the

plaintiff had failed to adduce evidence to establish an element

of her claim. Id. at 164. As we noted, “[a]lthough deprivation

of a 30 percent chance of survival may constitute an

injury, the injury that is compensable under ORS 30.020 is

death.” 342 Or at 164 (emphasis added). In contrast, this

case is not bound by a statute that requires that plaintiff

prove that defendants caused a specific injury. Rather, the

issue presented concerns a claim for medical negligence

under Oregon’s common law.

In the present case, plaintiff argues that loss of

chance is not an aspect of causation, but rather is a distinct

type of injury or harm, and one that numerous jurisdictions

have recognized in common-law negligence cases involving

medical malpractice. The Court of Appeals rejected that

argument without discussion, Smith, 270 Or App at 329

n 3, citing Lowe and Howerton v. Pfaff, 246 Or 341, 347, 425

P2d 533 (1967). Neither of those cases, however, addressed

whether loss of chance of a better medical outcome in the

Cite as 361 Or 456 (2017) 465

context of a medical malpractice claim could constitute a

harm or injury under Oregon common law.

In Lowe, the alleged injury was the plaintiff’s

increased risk of developing lung cancer from having consumed

the defendant’s cigarette products. 344 Or at 407.

The plaintiff did not allege physical harm or seek emotional

distress damages; she sought to recover the costs of periodic

medical screening for cancer. Id. at 409. One of the issues

presented was “whether a significantly increased risk of

future physical injury is a sufficient harm to state a negligence

claim.” Id. Following established precedent, this court

concluded that a threat of future physical harm is not, in

itself, actionable. Id. at 410.

In rejecting the plaintiff’s argument that the issue

was similar to the loss-of-chance issue left open in Joshi,

the Lowe court made a passing statement that the Court of

Appeals understood as foreclosing plaintiff’s lost-chance-asinjury

theory in this case. Specifically, in Lowe, this court

first described the issue left open in Joshi as whether “deprivation

of a 30 percent chance of survival may constitute an

injury” outside the context of the wrongful death statute,

and then as “whether ‘deprivation of a 30 percent chance of

survival’ would be sufficient proof of causation if the plaintiff

suffered an injury that did not lead to death.” Lowe, 344

Or at 413 (quoting Joshi, 342 Or at 164) (emphasis added).

This court then added that that statement in Joshi “goes

to the causal connection necessary to prove negligence, not

the type of injury necessary to state a negligence claim.”

Lowe, 344 Or at 413. The Court of Appeals appears to have

understood Lowe as signaling that a lost chance must be

understood in terms of causation.

However, this court did not tacitly conclude in Lowe

that all loss-of-chance theories must be considered as theories

of causation rather than injury. Rather, as the Lowe

court more precisely said, the “only question” in Joshi was

“whether the evidence was sufficient, for the purpose of the

wrongful death act, to find the necessary causal connection

between the defendant’s negligence and the patient’s

death.” Lowe, 344 Or at 413. In other words, in Joshi, we

decided a causation issue that arose by virtue of the injury

466 Smith v. Providence Health & Services

specified in the wrongful death statute, but we left open

whether deprivation of a chance of survival could, in fact,

constitute an “injury,” or satisfy causation requirements, in

other contexts. See Joshi, 342 Or at 164 (“Although deprivation

of a 30 percent chance of survival may constitute an

injury, the injury that is compensable under ORS 30.020 is

death.”).

Nor did this court reject a loss-of-chance theory

of medical malpractice in Howerton. That case concerned

whether the plaintiff’s health problem was caused by an

automobile accident. The plaintiff had been treated for neck

strain near the time of the accident, and then considerably

later sought treatment for a hernia in his groin. 246

Or at 343. This court concluded that the plaintiff had not

adduced sufficient proof of causation, given his physician’s

testimony that it was a mere “possibility” that the hernia

was a result of the accident and noting that a possibility was

not the same as probability. Id. at 346. That case stands for

the unremarkable proposition that causation must be established

with probability or reasonable certainty. It provides

no support for a conclusion that loss of chance of a better

medical outcome has been rejected as a theory of injury for a

medical malpractice claim under Oregon common law. Thus,

we are presented with an issue of first impression in our

court.

C. Loss of Chance in Common-Law Medical Negligence

Claims

The present case concerns whether the loss-ofchance

theory of injury should be cognizable in the context

of common-law negligence claims of medical malpractice in

Oregon. The loss-of-chance theory is responsive to cases like

this one, in which defendants undertook care of plaintiff

when he presented with symptoms of stroke, they breached

the duty to plaintiff by performing below the standard of

care, plaintiff suffered brain damage, and defendants

caused him to lose a 33 percent chance at recovering from

the stroke, i.e., plaintiff does not allege (and cannot prove)

that defendants caused his brain damage given that his

chance of recovery with proper treatment was not greater

than 50 percent.

Cite as 361 Or 456 (2017) 467

Loss of chance as a theory of recovery for negligence,

and in particular for medical malpractice, has gained

traction in the last half-century. At this point, courts in

most states have reached the issue, and more than half of

the jurisdictions in the United States that have considered

the issue have embraced the theory, at least to some extent.

See Lauren Guest, David Schap, and Thi Tran, The “Loss of

Chance” Rule as a Special Category of Damages in Medical

Malpractice: A State-by-State Analysis, 21 J Legal Econ 53,

58-60 (2015) (reviewing case law as of 2014 and concluding

that 41 states had addressed loss of chance, with 24 states

having adopted some version of the theory); Steven L. Koch,

Whose Loss is it Anyway? Effects of the “Lost Chance” Doctrine

on Civil Litigation and Medical Malpractice Insurance, 88

NC L Rev 595, 606-09 (2010) (citing cases). We review the

development of the loss-of-chance theory in medical malpractice

actions to provide context for our analysis of whether

and how plaintiff may use that theory.

An early iteration of the basis for the loss-of-chance

theory, and one that is widely cited, is found in Hicks v.

United States, 368 F2d 626 (4th Cir 1966). That case, which

involved a negligent failure to diagnose a condition that led

to the death of the patient, applied Virginia law. In rejecting

the defendant’s lack-of-causation argument, the court

explained that a negligent doctor must answer for a patient’s

lost chance of survival:

“When a defendant’s negligent action or inaction has

effectively terminated a person’s chance of survival, it does

not lie in the defendant’s mouth to raise conjectures as to

the measure of the chances that he has put beyond the possibility

of realization. If there was any substantial possibility

of survival and the defendant has destroyed it, he is

answerable. Rarely is it possible to demonstrate to an absolute

certainty what would have happened in circumstances

that the wrongdoer did not allow to come to pass. The law

does not in the existing circumstances require the plaintiff

to show to a certainty that the patient would have lived had

she been hospitalized and operated on promptly.”

Id. at 632. Although Hicks, unlike classic loss-of-chance

cases discussed below, did not actually involve proof of less

than a 51 percent chance that the correct diagnosis would

468 Smith v. Providence Health & Services

have led to a better medical outcome, id., it nonetheless

has come to be cited for the proposition that traditional

notions of “more likely than not” causation pose a problematic

barrier to recovery by patients who have experienced

poor medical outcomes due to a doctor’s failure to diagnose

and that other theories of recovery may be viable in that

context.

One of the earliest cases that explicitly recognized

loss of chance as a distinct theory of recovery in medical

malpractice was Hamil v. Bashline, 481 Pa 256, 392 A2d

1280 (1978). In that case, the plaintiff put on expert testimony

that the decedent had a 75 percent chance of surviving

his heart attack with proper treatment, which the defendant

countered with evidence that the decedent’s death was

imminent, regardless of treatment. The trial court directed

a verdict in the defendant’s favor after concluding that the

plaintiff had failed to establish that the defendant’s proven

negligence was the proximate cause of the death. Id. at 263,

392 A2d at 1283.

On appeal, the Pennsylvania Supreme Court analyzed

the question in terms of the quantum of proof necessary

to establish causation, like some other courts addressing

loss of chance, particularly earlier in the development

of the doctrine. Relying on the rationale from Hicks as well

as Section 323(a) of the Restatement (Second) of Torts,3 the

Pennsylvania Supreme Court described the loss-of-chance

theory as allowing “the issue to go to the jury upon a less

than normal threshold of proof.” Hamil, 481 Pa at 271, 392

A2d at 1287-88. The court therefore held that such a claim

could go forward if there was evidence that the “increased

3 Section 323, entitled “Negligent Performance of Undertaking to Render

Services,” provides:

“One who undertakes, gratuitously or for consideration, to render services

to another which he should recognize as necessary for the protection

of the other’s person or things, is subject to liability to the other for physical

harm resulting from his failure to exercise reasonable care to perform his

undertaking, if

“(a) his failure to exercise such care increases the risk of such harm, or

“(b) the harm is suffered because of the other’s reliance upon the

undertaking.”

(Emphasis added.)

Cite as 361 Or 456 (2017) 469

risk” was a “substantial factor in bringing about the resulting

harm.” Id. at 272, 192 A2d at 1288.

A small number of courts in other jurisdictions—

for example, Delaney v. Cade, 255 Kan 199, 218, 873 P2d

175, 187 (1994), and McKellips v. Saint Francis Hosp., Inc.,

741 P2d 467, 475 (Okla 1987)—have similarly characterized

loss-of chance theories of recovery in the medical malpractice

context as involving a relaxation of the causation standard.

Those jurisdictions use a test for the causal connection

between the patient’s ultimate physical harm and the doctor’s

negligence that substitutes “substantial factor” or “substantial

probability” for “preponderance of the evidence,”

that is, more-likely-than-not or greater-than-50-percent

causation. See generally Guest et al, 21 J Legal Econ at 56-57

(describing “substantial probability” theory of causation).

The “relaxed causation” approach to loss of chance, however,

is in the minority, and plaintiff does not rely on it.

The injury-based analytical approach—the one

urged by plaintiff in this case—is favored by commentators

and the majority of courts in other jurisdictions that have

approved of the loss-of-chance doctrine. That approach has

as its foundation the recognition of the lost chance as an

injury in itself.

For example, the author of an influential 1981 law

journal article posited that loss of chance need not be viewed

in terms of causation, but, rather, should be analyzed in terms

of how to value the lost chance itself. Joseph H. King, Jr.,

Causation, Valuation, and Chance in Personal Injury Torts

Involving Preexisting Conditions and Future Consequences,

90 Yale LJ 1353 (1981). Professor King maintained that

the loss of chance of achieving a favorable outcome “should

be compensable and should be valued appropriately, rather

than treated as an all-or-nothing proposition” dependent on

proof of a greater-than-50-percent chance of a better outcome

absent the alleged malpractice. Id. at 1354. He argued

that, in a medical malpractice situation in which a patient

presents with symptoms of a condition and a physician negligently

fails to diagnose and treat that condition, the preexisting

medical condition (which clearly was not caused

by the negligence) is merely something that is taken into

470 Smith v. Providence Health & Services

account when valuing the harm that actually was caused

by the negligent failure to diagnose: “The defendant should

be subject to liability only to the extent that he tortiously

contributed to the harm by allowing a preexisting condition

to progress[.]” Id. at 1360. The author provided the following

example:

“[C]onsider the case in which a doctor negligently fails

to diagnose a patient’s cancerous condition until it has

become inoperable. Assume further that even with a timely

diagnosis the patient would have had only a 30% chance

of recovering from the disease and surviving over the long

term. * * * [A loss-of-chance approach] would allow recovery

for the loss of the chance of cure even though the chance

was not better than even. The probability of long-term survival

would be reflected in the amount of damages awarded

for the loss of the chance. While the plaintiff here could

not prove by a preponderance of the evidence that he was

denied a cure by the defendant’s negligence, he could show

by a preponderance that he was deprived of a 30% chance

of a cure.”

Id. at 1363-64.

Professor King acknowledged that, at the time his

1981 article was published, “few personal injury cases have

recognized, even implicitly, the loss of chance as a compensable

interest valued in its own right.” Id. at 1365-66.4

However, he went on to explain that valuation of a loss of

chance was “well within the competency of science,” noting

that “[o]ne may deduce the probability figure from so-called

‘relative frequency’ by looking at the way in which the same

or similar forces operated in the past.” Id. at 1386 (footnote

omitted). King also explained that treating loss of chance as

a theory of injury does not dispense with causation requirements,

but instead shifts the causation inquiry to whether a

defendant caused the opportunity for a better outcome to be

lost—as opposed to the traditional negligence claim requiring

the plaintiff to establish that the defendant caused the

physical harm. King, 90 Yale LJ at 1395; see also Joseph H.

4 Interestingly enough, one of the cases the author cited as implicitly recognizing

loss of chance in terms of valuation was Feist v. Sears, Roebuck & Co., 267

Or 402, 517 P2d 675 (1973). King, 90 Yale LJ at 1366 n 40, 1380 n 96. Feist is

discussed more extensively below. See 361 Or at 484.

Cite as 361 Or 456 (2017) 471

King, Jr., “Reduction of Likelihood” Reformulation and Other

Retrofitting of the Loss-of-a-Chance Doctrine, 28 U Mem L

Rev 491 (1997) (discussing evolution of loss-of-chance as a

theory of injury).

Over twenty state courts have agreed with the

argument that King makes in his articles and have permitted

plaintiffs to assert a lost chance as a cognizable injury

in a medical malpractice claim. See Alice Férot, The Theory

of Loss of Chance: Between Reticence and Acceptance, 8 FIU

L Rev 591, 610 (2013) (listing cases); Lord v. Lovett, 146

NH 232, 770 A2d 1103 (2001); Dickhoff, 836 NW2d 321.

For example, in Matsuyama v. Birnbaum, 452 Mass 1, 890

NE2d 819 (2008), the Massachusetts Supreme Judicial

Court engaged in a comprehensive analysis of the loss-ofchance

theory. Ultimately, it concluded that such claims

should be cognizable, relying in part on Professor King’s

articles described above, as well as the rationale explicated

by the court in Hicks and the growing body of case

law from many jurisdictions recognizing the doctrine. The

court adopted the loss-of-chance theory of injury, limited

to the medical malpractice context, and explained that it

did not, in fact, relieve a plaintiff of the burden to prove

causation:

“[Massachusetts common law] requires that plaintiffs

establish causation by a preponderance of the evidence. In

order to prove loss of chance, a plaintiff must prove by a

preponderance of the evidence that the physician’s negligence

caused the plaintiff’s likelihood of achieving a more

favorable outcome to be diminished. That is, the plaintiff

must prove by a preponderance of the evidence that the

physician’s negligence caused the plaintiff’s injury, where

the injury consists of the diminished likelihood of achieving

a more favorable medical outcome.”

Matsuyama, 452 Mass at 17, 890 NE2d at 832 (citations

omitted). In 2013, the Minnesota Supreme Court agreed

with the Massachusetts court and King’s critique of the

“all or nothing” approach to liability, explaining that it

was “recognizing that an injury that has always existed is

now capable of being proven to a reasonable degree of certainty”

in medical malpractice cases. Dickhoff, 836 NW2d

at 333-35.

472 Smith v. Providence Health & Services

A significant number of states, however, have

rejected the loss-of-chance theory of recovery in medical

malpractice actions and instead adhere to a traditional “allor-

nothing approach.” That approach requires the plaintiff

to establish that the patient would have had a better than

50 percent chance of survival or a favorable outcome, which

then triggers a right to recover all damages resulting from

the defendant’s malpractice. See Guest et al, 21 J Legal Econ

at 59 (listing 17 states, but two states—Oregon and New

Hampshire—should not be on the list).

As Professor King recognized, much of the early

case law addressing the loss-of-chance theory in negligence

cases considered solely whether the theory comported with

the traditional requirement that the plaintiff must prove, by

a preponderance of the evidence, that the medical negligence

caused the physical harm in order to recover damages. See,

e.g., Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio

St 2d 242, 251, 272 NE2d 97, 103 (1971) (holding, as “the

better rule,” that “to comport with the standard of proof of

proximate cause,” the plaintiff had to prove that the defendant’s

negligence, in probability, caused the death). But even

in more recent cases in the 1990s and 2000s in which courts

have rejected the loss-of-chance theory of injury, the rationale

turned on the necessity of proving causation in a negligence

claim. See, e.g., Kilpatrick v. Bryant, 868 SW2d 594

(Tenn 1993). In that case, the Tennessee Supreme Court

concluded that “plaintiffs ought to be required to show that

the negligence more likely than not was the cause in fact

of the unfavorable medical result,” explaining its holding in

terms of traditional causation:

“Although a plaintiff can recover for harm stemming from

the aggravation of an existing illness, the plaintiff may

not recover damages for the loss of a less than even chance

of obtaining a more favorable medical result. The traditional

test for cause in fact prevents recovery because the

patient’s condition would more likely than not be the same

even if the defendant had not been negligent.”

868 SW2d at 602-03. More recently, the Connecticut

Supreme Court similarly held in Boone v. William W. Backus

Hospital, 272 Conn 551, 574, 864 A2d 1, 18 (2005), that,

Cite as 361 Or 456 (2017) 473

to establish a medical malpractice claim, a plaintiff must

prove that the decedent had at least a 51 percent chance of

survival—in other words, that it was more likely than not

that the negligent conduct caused “the actual outcome,” or

death.

When accepted, the loss-of-chance theory of injury

in tort cases has been largely limited to the medical malpractice

arena. The primary reason for that limitation is

the recognition that, in the context of medical malpractice,

it is the alleged medical malpractice itself that makes it

impossible for the plaintiff to prove that he or she would

have achieved that better outcome. Thus, as Professor King

has explained, the loss-of-chance doctrine should apply

“for reasons of fairness,” when, but for the tortious conduct,

“it would not have been necessary to grapple with the

imponderables of chance. Fate would have run its course.”

King, 90 Yale LJ at 1377. Stated another way, “the defendant’s

tortious conduct was the reason it was not feasible to

determine whether or not the more favorable outcome would

have materialized but for the tortious conduct.” King, 28 U

Mem L Rev at 543. See also Matsuyama, 452 Mass at 14,

890 NE2d at 831 (Courts adopting the doctrine recognize

that “it is particularly unjust to deny the person recovery for

being unable ‘to demonstrate to an absolute certainty what

would have happened in circumstances that the wrongdoer

did not allow to come to pass.’ ” (Quoting Hicks, 368 F2d at

632.)); Restatement (Third) of Torts § 26 comment n (2005)

(loss of chance “serves to ameliorate what would otherwise

be insurmountable problems of proof”). Some courts have

also recognized that the nature of the physician-patient

relationship provides a foundation for recognizing loss

of chance as an injury. See, e.g., Matsuyama, 452 Mass at

20, 890 NE2d at 835 (“medical negligence that harms the

patient’s chances of a more favorable outcome contravenes

the expectation at the heart of the doctor-patient relationship

that the physician will take every reasonable measure

to obtain an optimal outcome for the patient” (quotation and

citation omitted)); accord Restatement (Third) of Torts § 26

comment n (the very reason for the contractual relationship

between physician and patient is to obtain an optimal

patient outcome).

474 Smith v. Providence Health & Services

The loss-of-chance theory also functions in the context

of medical malpractice actions because, at least in some

instances of alleged negligence, ample reliable scientific evidence

about the statistical probability of various medical

outcomes is available. See, e.g., Matsuyama, 452 Mass at 20,

890 NE2d at 835 (“reliable expert evidence establishing loss

of chance is more likely to be available in a medical malpractice

case than in some other domains”). That is, the plaintiff

can demonstrate, through the use of expert testimony, the

statistical likelihood of a better medical outcome but for the

negligent conduct.

D. Oregon Common-Law Medical Malpractice Claims

Defendants contend that Oregon common-law medical

negligence cases are incompatible with, and therefore

foreclose recognition of, a loss-of-chance theory of injury or

harm. They first assert that, regardless of case law nationally,

this court has not recognized a loss-of-chance theory

in the past and, indeed, has consistently declined to recognize

what defendant describes as “new common law claims

or injuries” in cases involving common-law negligence.

Defendants further posit that, to recognize loss of chance

as a theory of injury in medical negligence cases, this court

would need to overrule precedent, but plaintiff has not satisfied

the conditions under which this court overrules such

precedent. See G.L. v. Kaiser Foundation Hospitals, Inc., 306

Or 54, 59, 757 P2d 1347 (1988) (party seeking a change in

court’s common law must show that earlier cases were inadequately

considered or wrong, that other law has altered

some essential legal element assumed in the earlier cases, or

that the earlier rule was based on factual assumptions that

have changed). Accordingly, we turn to the cases on which

defendants rely.

The mainstay of defendants’ arguments is a pair of

this court’s cases from the early twentieth century: Horn

v. National Hospital Association, 169 Or 654, 131 P2d 455

(1942), and Lippold v. Kidd, 126 Or 160, 269 P 210 (1928).

We address those cases in detail to assess defendants’ arguments

and conclude that neither one preordains our decision

in this case.

Cite as 361 Or 456 (2017) 475

Horn, like the present case, involved allegations

of negligent failure to diagnose. In that case, the plaintiff

alleged that the defendant was negligent in failing to diagnose

a gall bladder condition. The six-week delay in diagnosis

led to a delay of three months before the plaintiff underwent

gall bladder surgery. Id. at 659-60, 665. In the years

immediately after the surgery, the plaintiff experienced

numerous health problems, including psychiatric problems,

thyroid problems, and irritable bowel syndrome. Id. at 666-

67. The plaintiff’s theory of the case was that the failure to

timely diagnose the gall bladder condition was a contributing

cause of the conditions she experienced after the surgery.

This court was concerned with the weakness of the

plaintiff’s evidence, noting deficiencies in the logical chain

of events needed to establish but-for causation between the

assumed negligence of the defendant and her alleged injury.

Id. at 670-71. The court explained that the plaintiff’s proof

in that case failed because she lacked evidence that, at the

time of the misdiagnosis, surgery to remove the gall bladder

would have been necessary or advisable; that she would

have undergone surgery earlier had it been recommended;

and that the alleged delay of the surgery “resulted in harm

or damage that would not have occurred if there had been

no delay.” Id. at 672-78. The portion of the Horn decision

on which defendants here rely concerns the last of those

evidentiary deficiencies. Defendants highlight this court’s

explanation that the plaintiff in Horn had to establish that

her ailments would have been less severe had the surgery

occurred earlier:

“Where the alleged negligence of the defendant consisted

of physical non-feasance, that is, where the defendant

did no physical act which affected plaintiff’s condition,

and the negligence, if any, was the failure to diagnose and

advise, it is not sufficient for a plaintiff to show subsequent

ailments * * *. One must go further and show that competent

action would have been substituted for negligent inaction,

and that there was a reasonable probability that the

subsequent ailments would have been less if the substitution

had been made.

“Uncertainty as to the amount of damages will not

always prevent recovery, but where the causal connection

476 Smith v. Providence Health & Services

between the negligent failure of a defendant and subsequent

ailments of a plaintiff is left to mere speculation, a

nonsuit is required.”

169 Or at 679. Defendants contend that, like the plaintiff

in Horn, plaintiff in this case must show (but has failed to

plead) a causal connection between defendants’ conduct and

his physical injuries.

In Lippold, the plaintiff sought treatment for an eye

injury, and the defendant failed to detect a metal fragment

in the eye. The plaintiff subsequently lost sight in that eye.

This court explained that a plaintiff in a negligence action

must prove not only negligent conduct but must also “establish

by a preponderance of the evidence that such negligence

was the proximate cause of the injury for which he seeks

redress in damages.” 126 Or at 169-70. The court noted that

the plaintiff’s proof was lacking. He had rested his case

“without supplying any testimony as to the effect upon the

eye produced by the presence of a foreign particle in its interior,”

id. at 170, and failed to establish that the removal of

the metal fragment had even been possible, id. at 173. The

defendant had adduced medical evidence that the plaintiff

would have lost his sight regardless of whether the fragment

had been detected and removed when the plaintiff sought

treatment, and the plaintiff’s expert did not contradict that

evidence. Id. at 171-72. Thus, the evidence “gave to the jury

no formula whatever by which it could determine whether

the injury to the eye would eventually destroy its usefulness.”

Id. at 174.

We are not convinced by defendants’ reliance on

Horn and Lippold. In both cases, the plaintiffs alleged that

the injuries for which they sought to recover were the health

problems that they experienced after they were seen by the

defendants. This court, therefore, analyzed the claims in

Horn and Lippold in terms of the causal connection between

the alleged negligence and the plaintiffs’ later ailments or

conditions. This court was not called on to decide whether

the loss of a chance at a better outcome was, in itself, an

actionable injury, and so Horn and Lippold do not foreclose

any possibility of viewing the injury from a negligent failure

to diagnose in a medical malpractice claim in terms of the

loss of the chance at a better medical outcome.

Cite as 361 Or 456 (2017) 477

E. Should Oregon Recognize Loss of Chance in the Context

of Common-Law Medical Malpractice Claims?

Plaintiff urges that (1) loss of a chance of a better

medical outcome is a discrete harm that he should be

allowed to plead and prove; (2) recognizing that loss is consistent

with the requirement that a plaintiff prove that the

defendant’s negligence was the cause in fact of the loss; and

(3) the decision of the Court of Appeals runs counter to

important goals of tort law. But, citing G.L. v. Kaiser

Foundation Hospitals, 306 Or at 59, defendants argue that

(1) plaintiff has not satisfied his burden to make the case for

changing the legal standard required for causation—and,

implicitly, that we cannot reach that issue—and (2) to recognize

the loss of chance as an injury would create unworkable

challenges for trial courts. Thus, the parties’ arguments

concerning whether Oregon should recognize loss of chance

as an injury in a medical malpractice action focus on two

major issues: Does G.L. constrain this court from considering

changes to Oregon’s common law of medical negligence?

And, if we are not constrained, should Oregon recognize

loss of chance as a cognizable injury in medical malpractice

cases? We address each issue in turn and ultimately

conclude that we can and should recognize loss of chance as

an injury in the context of common-law medical malpractice

claims.

The passage in G.L. on which defendants rely concerns

stare decisis. In that passage, this court explained

that, when asked to overrule common-law precedent, that

is, when it “reconsiders a nonstatutory rule or doctrine,”

it ordinarily does that “upon one of three premises.” G.L.,

306 Or at 59. But in this case, plaintiff is not asking us to

overrule common-law precedent; rather, plaintiff contends

that, in an existing common-law cause of action—medical

negligence—Oregon should recognize a loss of chance as a

compensable injury. Plaintiff’s position is analagous to the

extension of the cause of action for common-law wrongful

discharge in Brown v. Transcon Lines, 284 Or 597, 588 P2d

1087 (1978). In Brown, this court expanded common-law

wrongful discharge to cover retaliation against a worker for

filing a workers’ compensation claim, which extended the

common law into a new realm of protected activity but did

478 Smith v. Providence Health & Services

not overrule precedent. Thus, we do not view either the general

doctrine of stare decisis—the “prudential doctrine that

is defined by the competing needs for stability and flexibility

in Oregon law,” Farmers Ins. Co. v. Mowry, 350 Or 686,

697-98, 261 P3d 1 (2011)—or the often-recurring reasons

underlying the overruling of cases concerning the common

law, as articulated in G.L. and Mowry, as an insurmountable

barrier to our ability to address the case before us.

As this court stated in Mowry, our obligation “when

formulating the common law is to reach what we determine

to be the correct result in each case.” 350 Or at 698. Whether

an existing common-law cause of action should be extended

in a new situation may involve consideration of whether a

plaintiff’s interests are otherwise adequately protected by

the law. When, for example, existing statutory remedies

“are adequate to protect both the interests of society” as

well as the interests of the plaintiff, this court has found it

“unnecessary to extend an additional tort remedy.” Walsh

v. Consolidated Freightways, 278 Or 347, 352, 563 P2d 1205

(1977). But this is not a case in which plaintiff is seeking an

“additional” remedy when he already has one. That is, defendants

do not suggest that plaintiff, or any victim of medical

malpractice that results in the loss of a chance for a desirable

medical outcome that is not greater than even, has any

remedy at all if the common law does not provide one.

Rather, defendants’ main argument against recognizing

this theory of tort recovery is that it would result in

too heavy a reliance on statistical evidence, which defendants

describe as too speculative or subject to manipulation.

That argument has also been made in other states.

See, e.g., Matsuyama, 452 Mass at 17, 890 NE2d at 833. To

the extent that defendants suggest that a loss-of-chance

medical malpractice claim necessarily rests on evidence

that is too speculative because it involves odds that are

less than even, we disagree. As the Massachusetts court

explained in Matsuyama, ‘[t]he magnitude of a probability

is distinct from the degree of confidence with which it can

be estimated.” Id. That is, an expert opinion that a certain

treatment of a medical condition leads to a desirable medical

outcome in 33 percent of cases may be based on solid, unimpeachable

data, irrespective of whether that percentage is

Cite as 361 Or 456 (2017) 479

below 51 percent. The reliability of the data does not alter

the 33 percent chance, nor does the fact that the chance is

only 33 percent mean that the data on which it is based is

unreliable.

And, if the expert’s opinion about the 33 percent

chance is, in fact, incorrect, a defendant has the ability to

counter it with its own expert testimony, e.g., that the actual

percentage is much lower, that the sources on which the

plaintiff’s expert relies are faulty, that the result is based

on outcomes in cases that are not factually comparable to

the plaintiff’s case, and similar points undermining the reliability

of the plaintiff’s evidence. As the Matsuyama court

noted, “at least for certain conditions, medical science has

progressed to the point that physicians can gauge a patient’s

chances of survival to a reasonable degree of medical certainty,

and indeed routinely use such statistics as tools of

medicine.” 452 Mass at 18, 890 NE2d at 834. We are unconvinced

that the nature of the evidence involved in a lossof-

chance medical malpractice claim is so problematic as to

preclude recognition of such a claim.

That brings us to the question whether we should

adopt a loss-of-chance theory of injury in Oregon. We agree

with plaintiff that, unlike the “reduced causation” lossof-

chance theory adopted in a handful of other jurisdictions,

the causation element of a medical negligence cause

of action in Oregon, see Joshi, 342 Or at 162 (ordinarily,

the plaintiff must prove that the defendant’s conduct more

likely than not caused the alleged injury), can apply to

the loss of chance when it is understood as an injury. In

other words, when the lost chance is the injury in a medical

malpractice action, the plaintiff still bears the burden to

prove that, more likely than not, the defendant’s negligence

caused the plaintiff to lose the chance of a favorable medical

outcome.

We also consider important plaintiff’s argument

that failing to recognize a loss-of-chance theory of injury

in the context of medical malpractice has the effect of

insulating from malpractice claims the negligent services

that medical providers have given to those who seek treatment

for conditions when their odds of a favorable medical

480 Smith v. Providence Health & Services

outcome are less than 51 percent before treatment but who

can prove that they had an opportunity to realize that

favorable outcome with appropriate treatment. For example,

a negligent medical provider who prevents a patient

from having a shot at a 45 percent chance of a favorable

medical outcome need not compensate that patient at all.

That patient bears the entire cost of the negligent conduct,

a result that does not spread the risk of the negligent conduct

to the negligent party, although “a function of the tort

system is to distribute the risk of injury to or among responsible

parties.” Bagley v. Mt. Bachelor, Inc., 356 Or 543, 551-

52, 340 P3d 27 (2014) (citing W. Page Keeton, Prosser and

Keaton on the Law of Torts § 4, 20-25 (5th ed 1984)). And, a

second principle of tort law, the “ ‘prophylactic’ factor of preventing

future harm,” id. at 551, is undercut when medical

providers are insulated against malpractice committed

against patients when the same act (or omission) of negligence

would be cognizable if committed against a patient

with a better prognosis, for example, 51 percent. Taking

the hypothetical of a patient with a 45 percent chance at a

favorable outcome and looking at it from another angle, the

all-or-nothing rule always results in negligent physicians

avoiding liability and in uncompensated patients—even

though in 45 out of 100 instances, the patients suffered

their adverse medical outcomes because of the physician’s

negligence.

Moreover, as noted earlier, the physician-patient

relationship is a special one in which the patient with an

ailment or injury seeks to optimize the chance of recovery

and the physician undertakes a duty of care, skill, and diligence

to the patient. And when the physician’s negligence—

conduct below the standard of care—deprives a patient of

the one chance that the patient had at recovery, even when

that chance was not greater than a fifty-fifty proposition,

considerations of fairness weigh in favor of compensation for

the destruction of that chance. That is because the physician’s

breach of the duty to the patient results in a situation

in which no one can know whether the patient would have

recovered with proper medical care.

That consideration distinguishes this court’s decision

in Drollinger v. Mallon, 350 Or 652, 669, 260 P3d 482

Cite as 361 Or 456 (2017) 481

(2011), a legal malpractice action in which the plaintiff made

some “loss of chance” types of arguments. In Drollinger, this

court declined to apply “loss of chance” in the legal malpractice

context:

“In our view, the loss of chance doctrine should not be

imported into the legal malpractice context. Whatever the

merits in the medical malpractice context, where the proof

burden facing some plaintiffs otherwise would be insurmountable

and where statistical evidence that can fill the

void is readily available, the argument for its application

in the legal malpractice context is less compelling, where

it would simply reduce the plaintiff’s burden vis-à-vis the

traditional ‘case within a case’ methodology.”

Id. at 669 (footnote omitted). Unlike a legal malpractice

plaintiff, who has an entirely adequate way of using the

“case within a case” methodology to demonstrate a better

outcome, a medical malpractice plaintiff pursuing a loss-ofchance

theory has lost the only chance due to the defendant’s

alleged negligence. Thus, the medical malpractice plaintiff

asserting loss of chance is not, contrary to defendant’s suggestion

in the present case, in essentially the same position

as a legal malpractice plaintiff.

As described earlier, numerous state courts have

earlier decided the question before us, some as early as in the

1970s. There appears to be no data indicating that medical

malpractice litigation has gone up or that malpractice insurance

premiums have gone up because of or even in a way

that is correlated with a state’s decision to adopt the lossof-

chance theory of recovery in medical malpractice actions.

See generally Koch, 88 NC L Rev at 619-26 (reviewing certain

data and arguing that adoption of the loss-of-chance

theory has no significant impact on numbers of actions or

malpractice insurance costs). Neither defendants nor amici

Oregon Medical Association (OMA) and American Medical

Association (AMA) attempt to make the argument that

adoption of the doctrine would have those kinds of effects.

The OMA and AMA do assert that adoption of the doctrine

will increase “defensive medicine” practice in Oregon, but

they provide no analysis or data indicating that has been

shown to be the case in the states that have already adopted

the loss-of-chance theory.

482 Smith v. Providence Health & Services

In tandem with that assertion of adverse effects

on medical practice, defendants, the OMA, and the AMA

all urge that the legislature is the appropriate decision

maker concerning the loss-of-chance doctrine. First, we

readily reject the OMA and AMA’s argument that, because

the Oregon Legislative Assembly has chosen to enact some

legislation addressing inappropriate medical practice,

see ORS 677.097 (an “informed consent” requirement),

we should understand, from the absence of any statute

in Oregon concerning loss-of-chance, that the legislature

has made a policy choice about the loss-of-chance theory

that we should honor. Rather, the absence of any statute

indicates that, despite being the subject of litigation in the

state courts over the course of the past 40 years, the lossof-

chance theory has not been of legislative interest. See

Koch, 88 NC L Rev at 614-17 (describing limited legislative

efforts concerning the loss-of-chance doctrine despite

legislative efforts targeting tort reform among the states).

Second, implicit in defendants’ argument are two false

assumptions: (1) our rejection of the loss-of-chance doctrine

would be a nondecision, reserving the issue for the legislature

and (2) the inverse of that assumption—that our

acceptance of the loss-of-chance doctrine would be a decision

precluding legislative action. The fact is that, regardless

of whether the legislature could have in the past or

may in the future weigh in on this issue, this court is the

forum for a case involving a common-law medical malpractice

claim and that we are called on to decide common-law

cases properly presented to us.

In light of all those considerations, we conclude that

a limited loss-of-chance theory of recovery should be recognized

in common-law negligence cases involving medical

malpractice in Oregon. Because this case was dismissed at

the pleading stage, it presents only a limited opportunity to

discuss the various aspects of such a claim and the considerations

in litigating a medical malpractice claim in which

the plaintiff alleges the loss of a chance at a recovery or

better medical outcome. However, we address some practical

concerns that defendants and amici raise and provide some

contours of that theory of recovery to provide guidance on

remand.

Cite as 361 Or 456 (2017) 483

First, as defendants and the OMA and AMA note,

some jurisdictions that accept loss of chance as an injury

require the plaintiff to establish that he or she lost a “substantial

chance” of a better medical outcome due to the defendant’s

medical negligence. In this case, plaintiff alleges that

he lost a 33 percent chance at no or limited complications

from his stroke because of defendants’ negligence. Although

there are numerous reasons why the courts in those other

jurisdictions have required the loss of a “substantial chance,”

we need not decide that issue in this case, because we conclude

as a matter of law that, whether required or not, plaintiff

has alleged the loss of a substantial chance by alleging

a 33 percent chance of total or close to total recovery from

his stroke had defendants provided him with non-negligent

care.

Second, as defendants argue, fairness to defendants

requires that plaintiff plead with specificity the lost chance

of a better medical outcome. In practical terms, a plaintiff

must plead the percentage and quality of his or her loss

of chance, which in turn must be based on the plaintiff’s

experts and relevant scientific evidence that meets the standard

of reasonable medical probability. Plaintiff’s allegation

in this case is sufficient to meet the pleading requirement.5

Third, as his complaint reflects, plaintiff has suffered

the physical harm that he might well have avoided

had he received proper medical care. That present adverse

medical outcome is an essential element of a common-law

medical malpractice claim and provides the foundation

for a calculation of plaintiff’s damages. Most jurisdictions

that have recognized loss of chance as a theory of injury in

medical malpractice cases have an approach akin to that

suggested by Professor King in the 1981 law review article

cited above. That is, to paraphrase it, a plaintiff who demonstrates

that a physician’s negligence reduced his chance of a

5 We note that this case involves a “loss of chance as injury” claim because

plaintiff was unable to allege that he had at least a 51 percent chance of recovery

but for defendants’ malpractice. Had he been able to make that allegation, he

would have had the ability to prove a standard medical malpractice claim based

on the ultimate poor medical outcome as the injury. In other words, that kind of

allegation involves proof of the medical outcome as the injury and not the lost

chance as the injury.

484 Smith v. Providence Health & Services

favorable medical outcome from 33 percent to zero percent

could recover damages based on the unfavorable medical

consequences suffered, but only to the possible extent of 33

percent of the damages resulting from the adverse medical

outcome. See, e.g., King, 90 Yale LJ at 1363-64.

Professor King cited this court’s decision in Feist

v. Sears, Roebuck & Co., 267 Or 402, 517 P2d 675 (1973),

as consistent with that approach, and we agree. In Feist,

which was not a medical malpractice case, there was no dispute

that the defendant’s negligence caused a cash register

to fall onto a child’s head, fracturing her skull and tearing

the skull’s lining. Id. at 403-04. The plaintiff’s expert testified

that, to a reasonable degree of medical certainty, the

child was susceptible to meningitis as a result of the injuries

to her skull, although her chance of developing meningitis

was low, and one of the questions on appeal was the permissibility

of an instruction allowing the jury to award damages

for that increased susceptibility. Id. at 410. This court

explained that, when there is evidence of an injury and a

susceptibility to the development of complications from that

injury in the future, such evidence “is sufficient as the basis

for a finding by the jury of some disability” and that the

jury can “make a larger award of damages” than in a case

that does not involve that type of “danger, risk, or susceptibility.”

Id. at 412. Although this court did not suggest a

specific mathematical formula by which damages were to be

ascertained, it clearly indicated that a jury should be guided

in its award of damages by its assessment of the likelihood

that the defendant’s negligence led to (or would lead to) the

medical sequelae of the negligence. 267 Or at 410-12.

In addition, it is implicit from this court’s decision in

Coffey v. Northwestern Hospital Association, 96 Or 100, 183

P 762, on reh’g, 96 Or 113, 115-16, 189 P 407 (1920), and more

explicit from this court’s decision in Curtis v. MRI Imaging

Services II, 327 Or 9, 956 P2d 960 (1988), that distress—both

physical and emotional—directly and foreseeably attributable

to negligence involving diagnosis and treatment of

a patient is recoverable under a loss-of-chance theory. In

Coffey, this court held that the plaintiff was entitled to seek

recovery of her damages for both mental and physical pain

and suffering she experienced due to the defendant’s failure

Cite as 361 Or 456 (2017) 485

to promptly provide surgical services. 96 Or at 115-18. See

also Curtis, 327 Or at 15 (permitting the plaintiff to recover

for psychological harm). Accordingly, plaintiff may recover

for both physical and emotional damages.

Although this court has not previously recognized

loss of chance as a theory of recovery in a negligence case,

we conclude that a loss of a substantial chance of a better

medical outcome can be a cognizable injury in a commonlaw

claim of medical malpractice in Oregon. Accordingly, we

conclude that the trial court erred in dismissing plaintiff’s

claim.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.