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Joshi v. Providence Health System of Oregon Corp.3/30/2005
Argued and submitted October 5, 2004.
Affirmed.
Satyapriy Joshi died of a stroke after two doctors failed to diagnose his condition. Joshi's wife brought a wrongful death action against both doctors and the hospital and clinic where each practices. The trial court directed a verdict for defendants after plaintiff proffered expert opinion testimony that a timely diagnosis and proper treatment would have improved Joshi's chance of survival by approximately 30 percent but that Joshi probably would have died anyway. Plaintiff appeals, assigning error to the trial court's ruling that she failed to present sufficient evidence that defendants' conduct caused Joshi's death to submit the case to the jury. We affirm, because plaintiff did not present expert testimony that there was a reasonable medical probability that defendants' conduct caused Joshi's death. See Chouinard v. Health Ventures, 179 Or App 507, 512, 39 P3d 951 (2002) (when causation involves a complex medical question, evidence is insufficient to go to the jury without expert testimony that there is a reasonable medical probability of a causal connection).
We review the directed verdict for errors of law, considering the evidence in the light most favorable to plaintiff, the nonmoving party. Checkley v. Boyd, 170 Or App 721, 738, 14 P3d 81 (2000), rev den, 332 Or 239 (2001). On a Wednesday, six days before he died, Joshi suffered a stroke. An ambulance took Joshi to the hospital where Dr. Hedtke, the emergency room physician, treated him. Hedtke failed to diagnose Joshi's stroke. Instead, he wrote Joshi a prescription for Vicodin and released him. On Saturday, Joshi became disoriented, and his wife called Dr. Azhar, the family's physician, to report her husband's symptoms. Azhar also failed to correctly diagnose Joshi's condition. He attributed the disorientation to the Vicodin and instructed Joshi to replace it with Tylenol and to come to his office Monday morning. On Sunday, Joshi suffered another stroke. The hospital again treated him unsuccessfully, and he died two days later.
Joshi's wife, as his personal representative, brought a wrongful death action under ORS 30.020 against Azhar, Hedtke, and the clinic and hospital where each practices. The trial court granted a directed verdict for defendants after plaintiff's expert witness was unable to state in an offer of proof that, if defendants had correctly diagnosed Joshi's first stroke and treated him for it, Joshi probably would have survived. Instead, the expert explained that, had the doctors diagnosed the stroke, they would have had three treatment options available to prevent the second stroke that took Joshi's life. He opined that the first treatment option, tPA, would have improved Joshi's chance of survival by 30 percent. He offered a similar opinion about the second treatment option, aspirin, based on a study that showed that taking aspirin decreases by 28 percent the chance of a second stroke. With regard to the third treatment option, heparin, the expert opined that heparin would have improved Joshi's chance of survival, but he could not say by how much. The expert did not testify that the treatments could have been combined to cumulatively improve Joshi's chance of survival above 30 percent.
The sole issue on appeal is whether plaintiff's offer of proof included sufficient evidence of a cause-in-fact connection between defendants' negligence and Joshi's death to present a triable issue for the jury. Plaintiff argues that the evidence was sufficient because it demonstrated that defendants' negligence caused Joshi to lose a possibility of survival, and a reasonable juror could find that the lost possibility was a "substantial factor" i
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