Martineau v. Mckenzie-Willamette Med. Ctr.

371 Or. 408

537 P.3d 542

Jamie MARTINEAU, Personal Representative of the Decedent, Aaron Martineau, Respondent on Review,

v.MCKENZIE-WILLAMETTE MEDICAL CENTER, an assumed business name of McKenzie-Willamette Regional Medical Center Associates, a limited liability company, Defendant,andRadiology Associates, P.C., a corporation; Dariusz Zawierucha, M.D., an individual, Petitioners on Review,

and

Cascade Medical Associates, the assumed business name of Doctor's Emergency Room Corporation, P.C., a corporation; and Gary Josephsen, M.D., an individual, Petitioners on Review.

Jamie Martineau, Personal Representative of the Decedent, Aaron Martineau, Respondent on Review,

v.McKenzie-Willamette Medical Center, an assumed business name of McKenzie-Willamette Regional Medical Center Associates, a limited liability company, Defendant,andRadiology Associates, P.C., a Corporation; Dariusz Zawierucha, M.D., an individual, Petitioners on Review,

and

Cascade Medical Associates, the assumed business name of Doctor's Emergency Room Corporation, P.C., a corporation; and Gary Josephsen, M.D., an individual, Petitioners on Review.

SC S069760 (Control), (SC S069762)

Supreme Court of Oregon.

October 5, 2023

Travis Eiva, Eiva Law, Eugene, filed the petition for reconsideration and reply on behalf of respondent on review.

Hillary A. Taylor, Keating Jones Hughes, P.C., Portland, filed the response to the petition for reconsideration for petitioners on review Cascade Medical Associates and Gary Josephsen, M.D. Also on the response was Alice S. Newlin, Lindsay Hart, LLP, Portland, for petitioners Radiology Associates, P.C., and Dariusz Zawierucha, M.D.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, and Bushong, Justices, and Walters and Nakamoto, Senior Judges, Justices pro tempore.^**

BUSHONG, J.

Plaintiff petitions for reconsideration of this court's decision in Martineau v. McKenzie-Willamette Medical Center , 371 Or. 247, 533 P.3d 1 (2023), which reversed the decision of the Court of Appeals and affirmed the trial court's entry of judgment for defendants. Plaintiff seeks reconsideration of the merits of our opinion and the disposition. Plaintiff also seeks clarification of footnote 14 of the opinion, arguing that it could be incorrectly understood to state that a plaintiff asserting a loss of chance claim involving a decedent must prove that the defendant's negligence caused the death. To clarify that footnote, we modify it as follows: "To the extent that plaintiff's theory is that she should be able to recover damages for decedent's death without proving that, more likely than not, defendants’ negligence caused decedent's death * * * the claim fails because, in Smith , we rejected the theory that a lost chance claim can be based on a lowered standard of proof of causation. * * *." (Modification italicized.)

We decline to reconsider the merits of our opinion, but agree that our ultimate disposition was in...