Oregon Court of Appeals limits comparative fault defense in medical malpractice cases

By Shemia Fagan
December 23, 2010

This month, the Oregon Court of Appeals addressed the comparative fault defense in the context of medical malpractice cases in Son v. Ashland Community Healthcare ServicesSara Burns died while under the medical care of Ashland Community Healthcare Services ("ACHS") after she attempted suicide by overdosing on various drugs.  Her mother, as personal representiatve of Sara's estate, brought a wrongful death action against ACHS alleging professional negligence in its treatment of Sara.  ACHS raised the comparative fault defense, alleging that Sara failed to inform ACHS of her ingestion of a particular drug that would have changed ACHS' treatment plan and likely prevented her death.  The jury returned a verdict for the plaintiff for $740,000, after which the court reduced the award by a percentage because of Sara's comparative fault.  Plaintiff appealed.

    The Oregon Court of Appeals reversed, addressing for the first time the comparative fault defense in the context of medical malpractice cases.  The general rule for comparative fault comes from Fazzolari v. Portland School Dist. No. 1J and has been stated as "whether facts of the case indicate that the plaintiff took some action or failed to take some action which a reasonable person could have foreseen would increase the risk of harm to the plaintiff, and that the plaintiff did indeed suffer harm of the type which could have been foreseen."  The Oregon Court of Appeals narrowed the rule in medical malpractice cases to the injury caused by the negligent treatment, not the oringal injury that necessitated the need for treatment.  Here, the court found that Sara's negligent conduct occured prior to ACHS' negligent treatment and was therefore not eligible to be considered as comparative fault. 

In sum, the court annouced a new rule that, "as a matter of law, conduct that merely creates the need for medical treament cannot cause the type of harm at issue in medical malpratice cases--the injury resulting from the malpractice."


Medical cases can take as long as ten years to come to court, at great expense, and are notoriously difficult to win. Not only do you have to prove that the doctor was negligent, you also have to show conclusively that harm was done as a result. The courts are keen to protect the integrity of the health profession and avoid a flurry of similar claims, so it's far from easy to convince them.

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