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Failure to Diagnose and Treat Displaced Fractured Ribs; Jury Instructions


A patient presented to the hospital after falling at home. The patient was initially treated by the hospital’s emergency department personnel. The patient was later admitted to the hospital, where the patient was treated by hospitalists employed by one practice group.

 

Four days later, the hospitalists discharged the patient to a skilled nursing facility. Ten days later the patient’s condition worsened significantly. The patient’s blood oxygen saturation levels dropped. The patient’s breathing became rapid and shallow. A nurse practitioner at the skilled nursing facility believed that something was happening with the patient’s lungs and suspected the patient might have pneumonia. The patient’s condition continued to worsen over the next two days.

 

The skilled nursing facility returned the patient to the hospital. At the hospital the patient was found to have multiple displaced rib fractures and bleeding in the right chest cavity, which had caused the patient’s right lung to collapse. Later that same day, the patient died of respiratory failure due to the bleeding in the chest cavity and the collapse of the left lung.

 

The patient’s estate brought a medical negligence action against the hospital and hospitalists. The complaint alleged that the hospital and hospitalists were negligent in their care of the patient because they failed to diagnose and treat the patient’s rib fractures and internal bleeding. The complaint’s theory was that, when the patient first presented to the hospital, the patient had fractured ribs that were causing bleeding into the chest cavity and that the hospital’s and the hospitalist practice group’s doctors failed to diagnose and treat those problems, which continued and eventually led to the patient’s death. The estate did not make any claims against the skilled nursing facility.

 

The hospital and practice group did not dispute the medical cause of the patient’s death. They did dispute that the patient had displaced fractured ribs and internal bleeding during the first stay at the hospital. The hospital and practice group suggested that something happened while the patient was at the skilled nursing facility that caused the patient’s death. The hospital and practice group did not identify a particular cause and did not assert that the skilled nursing facility was negligent.

 

The hospital and practice group presented evidence suggesting that the patient’s ribs could have fractured, or if any of them were already fractured the fractures could have been displaced, by the patient’s own movements while at the skilled nursing facility or by actions or omissions by the skilled nursing facility. In support of that theory, the hospital and practice group presented testimony from medical experts. One expert testified that rib fractures can be displaced in the course of breathing, rolling around, or getting in and out of bed. Another expert suggested that the patient’s rib fractures could have been displaced during physical therapy at the skilled nursing facility.

 

The hospital and practice group also presented evidence that, although the skilled nursing facility knew that the patient was a high fall risk, the patient was not always assisted when walking. In addition, the nurse practitioner from the skilled nursing facility testified that no one at the skilled nursing facility was aware that the patient had fractured ribs, but that the nurse practitioner would want to know if the patient had fractured ribs because that patient would be at risk of bleeding into the chest cavity or puncturing a lung.

 

Because the hospital and practice group’s theory raised the possibility that the patient’s death was caused by something that happened at the skilled nursing facility, the estate requested a jury instruction regarding the tortfeasor’s liability for the subsequent conduct of a third party. The requested instruction stated: “If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant would also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable.”

 

The hospital and practice group objected to the instruction. The trial court refused to give the instruction. The trial court instructed the jury on negligence, reasonable foreseeability, causation, multiple causation, and two or more possible causes.

 

The jury found that the hospital was not negligent. The jury found that the practice group was negligent, but not the cause of the patient’s death.

 

The Court of Appeals of Oregon reversed. The appellate court held that the instruction was a correct statement of the law, was supported by evidence, and was necessary to avoid jury confusion given the parties’ competing theories of the case.

 

The Supreme Court of Oregon affirmed. The court held that the trial court erred in refusing to give the estate’s requested jury instruction concerning a tortfeasor’s liability for the subsequent conduct of another.

 

The trial court erred in refusing to give the estate’s requested jury instruction concerning a tortfeasor’s liability for the subsequent conduct of another. The court explained that the instruction correctly did not hold an original tortfeasor liable for all injuries that a plaintiff might suffer after being injured by the tortfeasor, or even all injuries that a plaintiff might suffer while undergoing medical treatment for the injuries caused by the tortfeasor. The text of the instruction expressly limited the original tortfeasor’s liability by providing that the tortfeasor was liable for additional injuries caused by the subsequent conduct of another “as long as the subsequent conduct and risk of additional injury were reasonably foreseeable.” The court explained that if a medical care provider negligently fails to provide information to a subsequent medical care provider, the first provider can be liable for injuries caused by the second provider’s actions, if both the second provider’s actions and the resulting injuries were reasonably foreseeable consequences of the first provider’s negligence. The court concluded that the appellate court correctly found the trial court erred in refusing to give the estate’s requested jury instruction.

 

The trial court’s refusal to give the estate’s requested jury instruction substantially affected the estate’s rights. The practice group’s defense was that someone else’s subsequent conduct caused the patient’s death. The court reasoned that, given the practice group’s theory and evidence, it was important for the jury to be instructed on the law governing a defendant’s liability for the injuries caused by another’s subsequent conduct, which is exactly what the estate’s requested instruction did. The trial court’s instruction regarding two or more possible causes would have encouraged the jury to identify possible causes, determine who is responsible for each of them, and then determine which cause was the more probable. Because the jury was not specifically instructed that the practice group could be responsible for the subsequent conduct of another, the jury could have erred in determining the causes for which the practice group could be responsible, and that error could have affected the jury’s determination of whether the practice group was liable for causing the patient’s death. The court concluded that the appellate court correctly found the trial court’s refusal to give the estate’s requested jury instruction substantially affected the estate’s rights.

 

The Supreme Court of Oregon affirmed the appellate court’s reversal of the trial court’s entry of judgment on a jury verdict in favor of the practice group.

 

See: Sloan v. Providence Health System-Oregon, 2019 WL 1496125 (Or., April 4, 2019) (not designated for publication).

 

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