Stone v. Witt

548 P.3d 497

331 Or.App. 722

Jerry C. STONE, Personal Representative for the Estate of Marika Jeanne Stone, an Oregon Resident, Plaintiff-Appellant,

v.Shante Lynn WITT et al., Defendants,andNancy L. Brennan, DO; St. Charles Health Systems, Inc., dba St. Charles Family Care, an Oregon Corporation; High Desert Personal Medicine, LLC, an Oregon limited liability company; Kevin Rueter, MD; MosaicMedical, an Oregon Corporation; and Walgreen Co., a Foreign Corporation, Defendants-Respondents.

A176439

Court of Appeals of Oregon.

Argued and Submitted May 22, 2023

April 10, 2024

Deschutes County Circuit Court, 18CV14401; Jack L. Landau, Senior Judge.

Kathryn H. Clark argued the cause and filed the briefs for appellant.

Hillary A. Taylor argued the cause and filed the brief for respondents St. Charles Health Systems, Inc., dba St. Charles Family Care and Nancy L. Brennan, D.O.

Ruth A. Casby argued the cause for respondents MosaicMedical and Walgreen Co. Also on the briefs were Janet M. Schroer and Hart Wagner LLP.

Travis A. Merritt, Thomas F. Armosino Jr., and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C., filed the brief for respondents High Desert Personal Medicine, LLC, and Kevin Rueter, M.D.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.

AOYAGI, P. J.

₇₂₄While riding her bicycle, Dr. Marika Stone was struck and killed by a vehicle driven by Shantel Witt. Plaintiff, the personal representative of Stone’s estate, appeals the dismissal of his negligence claims against Dr. Nancy Brennan and her employer St. Charles Health System, Inc.; Dr. Kevin Rueter and his employer High Desert Personal Medicine, LLC; MosaicMedical; and Walgreen Co. (collectively, "defendants").¹ Defendants are medical providers and a pharmacy that, according to plaintiff, negligently treated Witt before she hit Stone. In the operative complaint, plaintiff alleges that defendants violated their statutory standards of care by prescribing and dispensing large amounts of addictive drugs to Witt, and by not taking steps to prevent Witt from misusing those drugs, despite knowing or having reason to know that Witt was abusing drugs. Plaintiff further alleges that, as a foreseeable result of defendants’ conduct, Witt drove a vehicle while under the influence of those drugs and struck and killed Stone. The trial court dismissed plaintiff’s claims against defendants for failure to state a claim, reasoning that, because Stone was not defendants’ patient, they were under no obligation to avoid creating a foreseeable risk of physical injury to her.

On appeal of the resulting limited judgments, plaintiff challenges the dismissal of his claims. He argues that defendants’ status as medical or pharmaceutical providers does not insulate them from the general obligation to avoid creating foreseeable risks of physical harm to others. As explained below, under these circumstances—where plaintiff alleges that defendants breached their statutory standards of care in treating their patient, and thereby not only created a risk of harm to the patient but also unreasonably created a foreseeable risk of physical injury to a third party—we agree. Accordingly, we reverse and remand.

₇₂₅I. PLAINTIFF’S ALLEGATIONS

We state the facts as alleged in the complaint. Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or. 431, 434, 412 P.3d 133 (2018). Given the nature of the legal issue on appeal, only the basic facts are necessary to our discussion.

Defendants Brennan, St. Charles, Rueter, High Desert, and MosaicMedical are medical providers that treated Witt at various times. Plaintiff alleges that they violated their statutory standard of care, ORS 677.095(1), as to Witt by prescribing her addictive drugs in excessive amounts and for excessive periods of time without appropriate medical reasons and despite knowing or having reason to know that Witt was abusing the drugs. See ORS 677.095(1) ("A physician licensed to practice medicine * * * by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."). Plaintiff alleges that defendants’ conduct foreseeably caused Witt to develop and continue to suffer from a substance abuse disorder and foreseeably created a risk that she would drive under the influence of the prescribed drugs and other drugs and injure a third party like Stone.

Defendant Walgreen is a pharmacy where Witt filled some of her prescriptions. Plaintiff alleges that Walgreen’s pharmacists violated their rule-based standard of care, OAR 855-115-0105(1), as to Witt by continuing to dispense drugs to her despite knowing or having reason to know that Witt had a substance abuse disorder and was misusing and seeking excessive amounts of the drugs. See OAR 855-115-0105(1) (requiring practicing pharmacists to "[u]se that degree of care, skill, diligence and reasonable professional judgment that is exercised by a careful and prudent Pharmacist in the same or similar circumstances").² Plaintiff alleges that Walgreen’s pharmacists’ conduct also foreseeably contributed to Witt’s substance abuse disorder and foreseeably created a risk that she would drive impaired and injure someone like Stone.

₇₂₆For purposes of this appeal, the parties treat the question of the physician and medical practice defendants’ liability to plaintiff and the question of Walgreen’s liability to plaintiff as raising the same legal issue. Under the circumstances, we do the same and do not distinguish among the defendants in that regard, using "statutory standards of care" to refer generally to both ORS 677.095(1) and OAR 855-115-0105(1).

II. FORESEEABILITY IN NEGLIGENCE LAW

Before discussing the specific facts of this case further, we pause to provide an overview of certain principles of negligence law that give context to the way in which the issues were framed below and now arise on appeal.

[1] In Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987), the Supreme Court summarized the law of negligence:

"[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff."

Thus, in an ordinary common-law negligence scenario, when a person unreasonably creates a foreseeable risk of physical harm, the class of potential plaintiffs to whom the person may be liable depends on the foreseeability of the risk to those plaintiffs. See, e.g., Moody v. Oregon Community Credit Union, 371 Or. 772, 784, 542 P.3d 24 (2023) (one of the elements of negligence is that the plaintiff " ‘was within the class of persons’ " the risk to whom made the defendant’s conduct unreasonable (quoting Solberg v. Johnson, 306 Or. 484, 760 P.2d 867 (1988))).

[2] This case implicates the "unless" clause in Fazzolari—"unless the parties in-

voke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty." 303 Or. at 17, 734 P.2d 1326. Oregon courts have grappled with that clause for decades, including in the context of medical negligence claims alleging that a 1727medical provider breached a statutory standard of care to a patient. In the process, the Supreme Court has made clear that foreseeability principles are relevant to claims arising out of a special relationship. "[I]f the special relationship (or status or standard of conduct) does not prescribe a particular scope of duty, then ‘[c]ommon law principles of reasonable care and foreseeability of harm are relevant.’ " Piazza v. Kellim, 360 Or. 58, 73 n 9, 377 P.3d 492 (2016) (quoting Cain v. Rijken, 300 Or. 706, 717, 717 P.2d 140 (1986), quoted with approval in Fazzolari, 303 Or. at 16-17, 734 P.2d 1326); see also Sloan v. Providence Health System-Oregon, 364 Or. 635, 644, 437 P.3d 1097 (2019) (same); Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 342, 83 P.3d 322 (2004) (same).

[3] But exactly how foreseeability principles are relevant to claims arising out of a special relationship is less clear. As discussed in Piazza, foreseeability "plays a role in at least two overlapping common-law negligence determinations." 360 Or. at 70, 377 P.3d 492. First, it plays a role in determining "whether the defendant’s conduct unreasonably created a foreseeable risk of harm to a protected interest of the plaintiff such that the defendant may be held liable for that conduct— formerly described in terms of ‘duty’ and ‘breach’ as measures of negligent conduct." Id. Second, it plays a role in determining "whether, because the risk of harm was reasonably foreseeable, the defendant may be held liable to the plaintiff for the particular harm that befell the plaintiff’—"a concept that traditionally was referred to as ‘proximate’ cause and which, in our current analytical framework, operates as a legal limit on the scope of a defendant’s liability for negligent conduct." Id. at 70, 377 P.3d 492.

Thus, although foreseeability is a single concept under Fazzolari, it appears in at least two different places when mapped onto the elements of common-law negligence. See Fazzolari, 303 Or. at 14, 734 P.2d 1326 (explaining that the court’s decision in Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970), "made foreseeable risk the test both of negligent conduct and of liability for its consequences without phrasing the test in terms either of causation or of duty"); accord Piazza 360 Or. at 70, 377 P.3d 492 (noting that foreseeability’s two roles in the common-law negligence framework are "overlapping").

₇₂₈There is a fairly well-developed body of case law regarding the second role of foreseeability in...