## Facts

- Joseph L. Smith sought emergency care at a hospital operated by Providence Health & Services–Oregon, reporting headache and distorted vision.
- Smith alleged recurring or worsening symptoms over multiple encounters, including visual difficulties, confusion, and headaches.
- Smith alleged the treating emergency physician, Linda L. Desitter, M.D., failed to perform adequate examinations and did not provide standard stroke-related measures or prompt diagnostic imaging.
- Smith alleged a family-practice physician, Michael R. Harris, M.D., ordered an MRI on a non-urgent basis; when performed, it showed substantial brain damage from a stroke.
- Smith suffered permanent brain damage and stroke-related complications.
- Smith alleged negligence caused him to lose a 33% chance of a materially better outcome (no or reduced complications), asserting the lost chance itself was the compensable injury.
- The trial court dismissed the complaint with prejudice for failure to state a claim, and the Court of Appeals affirmed.

## Issues

1. Whether Oregon common law permits a medical negligence claim alleging that a defendant’s negligence caused a loss of a substantial chance of a better medical outcome as the legally cognizable injury.
2. Whether such a claim may proceed even if the plaintiff cannot plead or prove that the better outcome was more likely than not absent the negligence.

## Decision

- The Oregon Supreme Court reversed the Court of Appeals and reversed and remanded the trial court’s judgment dismissing the complaint.
- The court held, as a matter of first impression, that a medical negligence claim based on a loss-of-chance theory of injury is cognizable under Oregon common law in the circumstances alleged.
- The court treated loss of a substantial chance of a better outcome as a distinct compensable injury when coupled with an adverse physical outcome.
- The court declined to decide, at the pleading stage, the precise measure of damages or the detailed evidentiary burdens for proving the percentage loss.

## Legal Principles

- In Oregon medical negligence, the loss of a substantial chance of a better medical outcome may constitute a cognizable injury.
- Loss of chance may be framed as an injury rather than merely a causation problem, allowing recovery for a measurable reduction in the probability of a better outcome.
- A plaintiff need not establish that the better outcome was more probable than not absent negligence to state a claim for loss of a substantial chance.
- At the motion-to-dismiss stage, courts assume the truth of well-pleaded allegations; questions about proof, quantification, and damages may be addressed on a developed record.

## Conclusion

Oregon common law permits a medical negligence claim seeking damages for the loss of a substantial chance of a better medical outcome, and a complaint alleging a measurable probability reduction tied to an adverse physical result states a claim sufficient to survive dismissal.


Smith v. Providence Health & Servs.-Or., 361 Or. 456, 393 P.3d 1106 (Or. 2017)