Liability: Court Recognizes “Loss of a Chance of Recovery”: Failure to Follow Up on Stroke Symptoms

​The Supreme Court of Oregon joined numerous other jurisdictions in recognizing that in the context of alleged negligent medical care, “loss of a chance of recovery" is in itself a compensable injury. A plaintiff, claiming that he suffered preventable permanent brain damage from a stroke, sued a hospital, an emergency physician, and his family physician, alleging that their negligent failure to properly examine and treat him and their failure to provide timely follow-up on his complaints of stroke symptoms deprived him of treatment that, in one-third of cases, yields a better outcome—that is, no complications or reduced complications from stroke. A lower court had dismissed the complaint on the grounds that a cause of action for “loss of a chance of recovery" is not recognized in Oregon's medical negligence case law. The state's highest court resolved the legal issue in favor of the plaintiff.

The patient sought care in the defendant hospital's emergency department (ED) less than two hours after he began experiencing visual difficulties, confusion, slurred speech, and headache. The emergency physician ordered a computed tomography scan that showed no bleeding in his brain. The radiologist recommended considering magnetic resonance imaging (MRI) if the patient's symptoms continued. The emergency physician believed that the patient's symptoms were caused by taking a sleep aid, and instructed the patient to have his eyes examined and discharged him. The next evening the patient returned to the ED reporting a significant increase in pain in his head and continued vision problems. The same physician attended to him and discharged him with a prescription for an analgesic drug, again instructing him to see an eye doctor. The patient saw his family physician two days later. The physician ordered an MRI that was performed five days later. It indicated that the patient had...