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Chouinard v. Health Ventures2/13/2002
Argued and submitted July 3, 2001.
Affirmed.
Plaintiff sued defendants for medical malpractice. The trial court directed a verdict in defendants' favor because the jury could not reasonably infer that defendants' breach of the standard of care caused plaintiff's injuries. We affirm.
We state the facts in the light most favorable to plaintiff. Wheeler v. LaViolette, 129 Or App 57, 60, 877 P2d 665 1994. Plaintiff has a history of migraine headaches. In September 1993, she visited her physician, Dr. Pugsley, and reported that she had recently experienced disorientation and scattered thinking in addition to headaches. Pugsley attributed the symptoms to stress because plaintiff was working more than usual. She prescribed muscle relaxants, which relieved plaintiff's symptoms. In November, plaintiff reported that the headaches had returned and that they had become more frequent and severe. Plaintiff was expecting her second child at the time, and the doctor concluded that pregnancy and stress could be responsible for the symptoms.
Plaintiff did not see Pugsley again until March 1994. At that time, plaintiff complained of daily headaches. Pugsley prescribed additional medications and plaintiff's symptoms abated. In November, plaintiff complained of dizziness and sensitivity to light, but those symptoms disappeared in December. In January 1995, plaintiff returned to Pugsley. She reported that the medications were no longer working and that she had a headache more than 50 percent of the time. She also said that the pain she was experiencing was different from the pain associated with her earlier migraines. Pugsley prescribed additional medication, and plaintiff tried physical therapy.
On February 13, 1995, plaintiff reported that she had been listing to one side and feeling disoriented. Pugsley ordered a CT scan, which was performed that day. Dr. Kienzle, a neuroradiologist, analyzed the scan. Because Kienzle concluded that plaintiff's CT scan was normal, he did not order an MRI. Kienzle reported to Pugsley that he did not see any abnormality.
Plaintiff's symptoms worsened. She worked less, and then not at all. In late April and May, plaintiff was unable to care for her children and spent most of her time in bed or resting on the couch. Plaintiff reported vertigo, nausea, frequent vomiting, confusion, sensitivity to light, and disabling pain. Pugsley referred plaintiff to another neurologist, Dr. Lockfeld. Lockfeld treated plaintiff for an inner ear infection. Based on her lack of response to treatment, Lockfeld ordered an MRI in June 1995. That test revealed a three-centimeter tumor at the base of plaintiff's brain. Plaintiff underwent surgery in July, and most of the tumor was removed. Because the tumor was malignant, plaintiff also underwent radiation treatment.
Plaintiff sued Kienzle and Radiology Associates, P.C., claiming that Kienzle had negligently misread the February CT scan. She alleged that, as a result of Kienzle's negligence, the diagnosis and treatment of the tumor had been delayed approximately 100 days. She also alleged that the delay caused or aggravated various physical and emotional problems during that period. The primary component of her damages claim was for "pain and suffering during the delay, and emotional damages from her fears of recurrence, growth, and spread of the cancer and fears for her long term prognosis."
Several doctors testified at the trial. Dr. Miller, who performed the surgery, testified that, if the tumor had continued to grow untreated, plaintiff would have died. Lockfeld, plaintiff's neurologist, testified that he would have expected a brain tumor to produce "gradually worsen
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