As part of the patient-physician relationship, consent for treatment is given. Physicians explain the risks, benefits, and limitations of treatment Nowhere in that consent is a guaranteed good outcome given. It is not possible. Earlier case law in Oregon held that a physician does not guarantee a cure. Despite that lack of guarantee, a patient may sue a physician for medical malpractice, alleging a bad outcome due to the physician’s failure to follow a particular standard of care that caused injury to a patient.
Prior to November 2022, Oregon juries in medical malpractice cases were instructed “Physicians are not negligent merely because their efforts were unsuccessful. A physician does not guarantee a good result by undertaking to perform a service.” This instruction evolved from a series of cases where it was established that a physician does not guarantee a cure.
In November 2022, the appellate court of Oregon in Martineau v. Willamette Medical Center ruled that this instruction should no longer be part of the uniform civil jury instruction. The court found issue with the instruction as it obscures the fact that the correct focus is on application of the standard of care. In addition, the meaning of “result” has a broader meaning than “cure”. Therefore, the statement that “[a] physician does not guarantee a good result by undertaking to perform a service” is incorrect when stated—as it is in the instruction—as a universal principle.
Let’s turn to the underlying medical facts. Mr. Martineau sought care in the emergency room for chest pain and other complaints. One physician examined him and ordered a chest X-ray that the radiology physician read. The ordering physician, however, reviewed the X-ray and electrocardiogram of a different patient. He concluded that that the patient did not have an urgent cardiovascular problem or need further testing immediately. To the contrary, Mr. Martineau did have an urgent cardiovascular problem and died the next day.
The plaintiff personal representative of Mr. Martineau filed a lawsuit for wrongful death or, in the alternative, the loss of chance of recovery followed, alleging medical malpractice by the ordering physician, emergency room group, and the radiology physicians. The jury returned a verdict in favor of the defendants. The plaintiff appealed on the grounds that the court erred when it instructed the jury as follows: The plaintiff attempted to persuade the trial court that the instruction was never approved but the court rejected the plaintiff’s objection.
The appellate judges found two problems with the instruction. First, it takes away from the focus on the standard of care which is the issue to be decided because the guarantee of a good “result” is incorrect as a universal principle. Second, any benefit that it would add to a jury’s understanding of the law was significantly outweighed its potential to confuse a jury. In summary, this incorrect statement is likely to mislead a jury and should not have been given by the court.
Next, the appellate court considered where the error was harmless or detrimentally affected a party’s right. The plaintiff’s theory was that defendants negligently failed to recognize the urgency of the decedent’s condition when he came to the emergency room. If they had, they would have determined he needed a CT scan and performed emergency surgery to save his life.
The risk of giving the jury the instructions that a good result was not promised might cause the jury to reason that the defendants’ duty did not require them to order a CT scan because the CT scan was the “good result”. The CT scan was the primary focus of the plaintiff’s case.
In its decision, the appellate court deemed the error was not harmless because the instruction was misleading. The jury could have reasoned that even though the radiology defendants’ and the ER defendants did not meet the standard of care the defendants nevertheless were not negligent because a good result was not promised. The difference between a result and care are exemplified in this case. The defendant physicians were obligated to evaluate the deceased patient in accord with a standard of care that included testing and a CT scan.
The trial court decision was reversed and remanded for a new trial. Recently, the appellate court decision was submitted for review by the Supreme Court of Oregon.
AMA: Juries must be instructed that bad outcomes aren’t always negligence
The Anatomy of a Malpractice Lawsuit
The Medical Malpractice Deposition: A Review for Radiologist-Defendants
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