Sloan ex rel. Estate of Sloan v. Providence Health System-Oregon

282 Or.App. 301

386 P.3d 203

Dennis L. Sloan, Personal Representative, on behalf of the Estate of Jack L. Sloan, Plaintiff–Appellant,

v. Providence Health System-Oregon, et al., Defendants,andApogee Medical Group, P.C., a corporation, Defendant–Respondent.

A152989

Court of Appeals of Oregon.

Argued and submitted October 13, 2015.

November 16, 2016

J. William Savage, Portland, argued the cause for appellant. With him on the briefs was J. William Savage, P.C.

Michael T. Stone, Hillsboro, argued the cause and filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.^*

TOOKEY, J.

Plaintiff brought this wrongful death action as personal representative of his father's estate, alleging that defendants Providence Health System–Oregon (Providence) and Apogee Medical Group, P.C. (Apogee) negligently caused the death of his father, Jack Sloan. Plaintiff appeals the judgment entered against him after the jury found Apogee negligent, but did not find Apogee's negligence to be the cause of Sloan's death.¹ Plaintiff argues that the trial court erred in failing to give two of plaintiff's requested jury instructions. Plaintiff also assigns error to the denial of his motion for a new trial. Because we conclude that the trial court erred in failing to provide one of the proposed instructions, we reverse and remand with respect to plaintiff's claim against Apogee.²

I. STANDARD OF REVIEW AND STATEMENT OF FACTS

In reviewing whether the trial court erred in failing to give the requested instructions, we view the evidence in the light most favorable to the establishment of the facts necessary to require the giving of those instructions. Hernandez v. Barbo Machinery Co. , 327 Or. 99, 101 n. 1, 957 P.2d 147 (1998).

On November 3, 2007, at about 3:00 a.m., Sloan, then 85 years old, fell in his bathroom after having blacked out for a moment. Sloan took a cab to the emergency room of a hospital, owned and operated by Providence, to receive treatment. He explained to the medical personnel that he had fallen and was experiencing chest pain and pain in what the medical personnel described as Sloan's "right flank" area, on the right side of Sloan's back, below his rib cage and above his hip bone. The emergency room medical personnel determined that Sloan had atrial fibrillation and began treating that condition. An x-ray was taken of Sloan's chest with a portable x-ray machine, and both the radiologist and the emergency room doctor found no rib fractures on the x-ray image. However, at trial, plaintiff's medical experts testified that the portable x-ray image showed, albeit subtly, that Sloan had at least one, and maybe five, displaced rib fractures, as well as some fluid in his right chest cavity.

Sloan was admitted to the hospital and treated for atrial fibrillation, anemia, and risk of stroke by Doctors Jasti and Naoom, both of whom were hospitalists³ employed by Apogee to work in Providence's hospital. Sloan's blood levels dropped significantly during his stay at the hospital, and the hospitalists treated the drop in Sloan's blood levels with a transfusion of two liters of blood, and performed an endoscopy and colonoscopy to determine the source of blood loss. The tests did not show the source of Sloan's blood loss, and the hospitalists ordered no further tests to determine the source of the problem.

Throughout Sloan's hospital stay, he complained of pain in his right flank area. Other than giving pain medication, the hospitalists did not diagnose or treat Sloan's complaint of pain. Sloan often needed oxygen for breathing, and nurses reported diminished sounds in both lobes of Sloan's lungs. Plaintiff's medical experts testified that Sloan's blood loss, complaints of "right flank" pain, his need for oxygen, and the nurses' reports of diminished sounds in the lobes of the lungs, all indicated that Sloan had rib fractures and bleeding in his chest cavity. The medical experts further testified that other diagnostic imaging equipment available at the hospital would have given the hospitalists a much sharper and more reliable image of Sloan's chest than the portable x-ray image taken in the emergency room. The hospitalists, however, did not order any further diagnostic imaging.

On November 7, the hospitalists discharged Sloan to a skilled nursing facility, Avamere Three Fountains (Three Fountains), where medical personnel understood from the hospital records that Sloan was at risk of syncope, or loss of consciousness, was anemic with the cause unknown, had high blood pressure and atrial fibrillation, and was "generally deconditioned" from having been in a hospital bed for several days. Sloan remained at Three Fountains until November 19. He was able to breathe, supported, on and off, by two liters of oxygen per minute, until the morning of November 17, when Sloan's oxygen saturation levels decreased to 70 percent. By November 19, with the support of four liters of oxygen per minute, Sloan's oxygen saturation levels had declined to 58 percent and his breathing was shallow and irregular. Three Fountains sent Sloan to the emergency room for treatment.

A chest x-ray taken at the emergency room on November 19 indicated that Sloan had a hemothorax, which is an accumulation of blood in the lung cavity. The emergency room doctor drained approximately 1100 milliliters of bloody fluid from the lung cavity, and a second x-ray on that day showed that Sloan's right lung had collapsed from a hemothorax, that Sloan had three to five displaced rib fractures, and that at least two of those rib fractures had caused bleeding into the chest cavity. Sloan died shortly thereafter.

After an autopsy, the medical examiner determined that the cause of Sloan's death was "respiratory failure due to right hemothorax, which is blood in the chest cavity, and right lung collapse due to multiple rib fractures due to a domestic fall." Dr. Thorson, who treated Sloan on November 19 in the emergency room, testified at trial that the same rib fractures that existed on November 3 were likely the cause of the hemothorax on November 19.

At trial, plaintiff's theory of liability was that Sloan came to the hospital with rib fractures and bleeding in his chest cavity, which Providence's medical personnel and Apogee's hospitalists were negligent in failing to diagnose and treat, and that their failure caused Sloan's death. Pertinent to this appeal, plaintiff alleged in his fourth amended complaint that Apogee was negligent "in one or more" of the following particulars:

"(a) In failing to ascertain the presence of multiple rib fractures ;"(b) In failing to recommend or order or obtain additional imaging studies to adequately rule in or rule out the presence of multiple rib fractures ;

"(c) In failing to treat Mr. Sloan for multiple rib fractures ;

"(d) In failing to ascertain the likely source of blood loss during Mr. Sloan's hospitalization;

"(e) In discharging Mr. Sloan without ascertaining the likely source of bleeding;

"(f) In assuming that Mr. Sloan suffered only a bruise on his right flank from his fall."

Apogee's main theory of defense was that "something happened" to Sloan, beginning November 17, while Sloan was in Three Fountains' care. That unknown event, Apogee argued, caused Sloan's death. To support its theory, Apogee offered evidence that when Sloan left Apogee's care, Sloan had no displaced rib fractures and no bleeding in his chest cavity and that, upon arriving at Three Fountains, Sloan could breathe at normal rates without supplemental oxygen, had clear breath sounds in his lungs, had no cough or shortness of breath, and denied any chest pain. As evidence of a dramatic change, Apogee pointed to Sloan's reduced oxygen saturation levels starting on November 17 when Sloan was at Three Fountains, and the November 19 x-ray, showing that Sloan had three displaced fractures, two of which caused bleeding into the chest cavity.

Although Apogee acknowledged that no one knew what happened at Three Fountains, Apogee proffered evidence of certain possibilities. For example, with regard to the rib fractures, Apogee's medical expert, Kozak, testified, "I don't know what happened with the patient between, just in the course of breathing, rolling around, getting in and out of bed, I mean, there's lots of things that can cause fractures to displace." Apogee also introduced evidence that Sloan had complained of dizziness at Three Fountains, which made him a high fall risk, and that Three Fountains had listed Sloan as ambulatory "with standby assistance," meaning that someone was to stand by Sloan for assistance in case he started to fall. Nevertheless, Sloan had decided against having side rails on his bed, and was found to have walked to the bathroom and sat on the side of his bed unassisted. Notations in Sloan's chart stated he "tended to move quickly" and was impulsive with "decreased safety awareness." A patient chart note of November 15 stated that Sloan was "willing and eager to work with therapy, wants more activity out of bed," but also noted that Sloan needed some assistance to get up in bed, and required "six minutes rest at edge of bed."

Another of Apogee's medical experts, Dobson, testified that, although he believed there were multiple rib fractures on November 3, those fractures were not displaced, meaning they were only cracked, and some had started to heal. Dobson explained:

"And I think what happens is this man got up and he went to his physical therapy * * * for example, he's eager to do that. At some point something happened. Something happened to cause * * * [d]isplacement and disruption * * * that hit the blood vessels and he bled sometime after the 15th. And he bled filling up two to two and a half liters of fluid in to his lungs.

"And by the 17th it's absolutely manifested by the man for no other explainable reason, dropping his oxygen saturation, having respiratory shallowness, and rapid breathing."

At the end of testimony by the...