Martineau v. McKenzie-Willamette Medical Center

No. 19 July 7, 2023 247

IN THE SUPREME COURT OF THE

STATE OF OREGON

Jamie MARTINEAU,

Personal Representative of the Decedent,

Aaron Martineau,

Respondent on Review,

v.

McKENZIE-WILLAMETTE MEDICAL CENTER,

an assumed business name of

McKenzie-Willamette Regional Medical Center Associates,

a limited liability company,

Defendant,

and

RADIOLOGY ASSOCIATES, P.C.,

a Corporation;

Dariusz Zawierucha, M.D.,

an individual,

Petitioners on Review,

and

CASCADE MEDICAL ASSOCIATES,

the assumed business name of

Doctor’s Emergency Room Corporation, P.C.,

a corporation; and

Gary Josephsen, M.D., an individual,

Petitioners on Review.

(SC S069760) (Control)

Jamie MARTINEAU,

Personal Representative of the Decedent,

Aaron Martineau,

Respondent on Review,

v.

McKENZIE-WILLAMETTE MEDICAL CENTER,

an assumed business name of

McKenzie-Willamette Regional Medical Center Associates,

a limited liability company,

Defendant,

and

248 Martineau v. McKenzie-Willamette Medical Center

RADIOLOGY ASSOCIATES, P.C.,

a Corporation;

Dariusz Zawierucha, M.D.,

an individual,

Petitioners on Review,

and

CASCADE MEDICAL ASSOCIATES,

the assumed business name of

Doctor’s Emergency Room Corporation, P.C.,

a corporation; and

Gary Josephsen, M.D., an individual,

Petitioners on Review.

(SC S069762)

(CC 17CV36517) (CA A172846)

(SC S069760 (Control); S069762)

On review from the Court of Appeals.*

Argued and submitted March 9, 2023, at University of

Oregon School of Law, Eugene, Oregon.

Hillary A. Taylor, Keating Jones Hughes, P.C., Portland,

argued the cause for petitioners Cascade Medical Associates

and Gary Josephsen, M.D. Lindsey H. Hughes, Keating

Jones Hughes, P.C., Portland, filed the brief for petitioners

Cascade Medical Associates and Gary Josephsen, M.D. Also

on the brief was Hillary A. Taylor.

Alice S. Newlin, Lindsay Hart, LLP, Portland, argued the

cause and filed the brief for petitioners Radiology Associates,

P.C. and Dariusz Zawierucha, M.D. Also on the brief were

Nikola L. Jones and Jay W. Beattie.

Travis Eiva, Eiva Law, Eugene, argued the cause and

filed the brief for respondent on review Jamie Martineau.

Ruth A. Casby, Hart Wagner LLP, Portland, filed the brief

for amici curiae Oregon Medical Association and American

Medical Association. Also on the brief was Janet M. Schroer.

______________

* Appeal from Lane County Circuit Court, Charles D. Carlson, Judge. 320

Or App 534, 514 P3d 520 (2022).

Cite as 371 Or 247 (2023) 249

Rhett G. Fraser, Huegli Fraser PC, Portland, filed the

brief for amicus curiae Oregon Trial Lawyers Association.

Before Flynn, Chief Justice, and Duncan, Garrett,

DeHoog, Bushong, Justices, and Walters and Nakamoto,

Senior Judges, Justices pro tempore.**

BUSHONG, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

Flynn, C. J., concurred in part and concurred in the judg-

ment, and filed an opinion, in which Walters, S. J., joined.

______________

** James, J., did not participate in the consideration or decision of this case.

250 Martineau v. McKenzie-Willamette Medical Center

BUSHONG, J.

In this wrongful death action—which raises mul-

tiple claims of medical negligence against physicians and

others—we must decide two questions. The first is whether

the trial court erred when it instructed the jury that phy-

sicians “are not negligent merely because their efforts were

unsuccessful” and that a physician “does not guarantee a

good result by undertaking to perform a service.” The sec-

ond is whether plaintiff had alleged a lost chance claim

under Oregon’s survival statute, ORS 30.075, that is sepa-

rately cognizable from her wrongful death claim under ORS

30.020.1 In the proceedings below, the trial court dismissed

plaintiff’s lost chance claim before trial. Later, when sub-

mitting the wrongful death claim to the jury at the close of

trial, the court included the challenged instruction—which

was taken from Uniform Civil Jury Instruction (UCJI)

44.03 at defendants’ request—in its instructions to the jury.

After the jury returned a verdict in defendants’ favor, plain-

tiff appealed, and the Court of Appeals reversed, conclud-

ing that the trial court had erred in dismissing plaintiff’s

lost chance claim and by including UCJI 44.03 in the jury

instructions. Martineau v. McKenzie-Willamette Medical

Center, 320 Or App 534, 514 P3d 520 (2022). We allowed

defendants’ petition for review and now conclude that plain-

tiff did not allege a lost chance claim that is cognizable

under Oregon law, and, further, that the trial court did not

err when it included UCJI 44.03 in the jury instructions. We

therefore reverse the decision of the Court of Appeals and

affirm the judgment of the trial court.

I. FACTS AND PROCEEDINGS BELOW

A. Facts

The facts are taken from plaintiff’s complaint,

assuming the truth of the allegations stated therein. See

Brennen v. City of Eugene, 285 Or 401, 405, 591 P2d 719

(1979) (when assessing whether trial court erred in granting

1

In her complaint, plaintiff asserted two wrongful death claims (one for neg-

ligence and one for negligence per se) and two separate claims based on a loss-of-

chance theory (one alleging negligence and the other alleging breach of contract).

For ease of reference, we refer to those categories of claims, respectively, as plain-

tiff’s wrongful death claim and her lost chance claim.

Cite as 371 Or 247 (2023) 251

a motion to dismiss, appellate court assumes the truth of

all well-pleaded allegations and any facts that might be

adduced as proof of those allegations); see also Purdy v.

Deere and Company, 355 Or 204, 231-32, 324 P3d 455 (2014)

(appellate court must review the evidence at trial only when

determining whether an instructional error was harmless).

In 2014, decedent Aaron Martineau, age 28, arrived

at the McKenzie-Willamette Hospital emergency room, com-

plaining of sudden onset chest pain, shortness of breath,

and other symptoms. He was seen by a physician assistant

and by a physician, defendant Josephsen; both worked for

defendant Doctor’s Emergency Room Corporation, P.C. (col-

lectively, the ER defendants). They ordered a chest x-ray,

which was reviewed by a radiologist, defendant Zawierucha,

who worked for defendant Radiology Associates, P.C. (collec-

tively, the Radiology defendants).

Defendants did not adequately review the x-ray or

refer decedent for further imaging or other tests to rule out

or confirm the presence of serious cardiovascular or cardio-

pulmonary conditions. Instead, they diagnosed him with

noncardiac chest pain and discharged him from the hospi-

tal. Approximately 24 hours after being discharged, dece-

dent died from an aortic dissection in his heart.2

B. Proceedings Below

Decedent’s wife, as personal representative of his

estate, filed an action against defendants, alleging two

sets of claims. First, she asserted a wrongful death claim

under ORS 30.020 based on defendants’ alleged medical

negligence, specifically alleging, among other things, that

the ER defendants had been negligent in examining dece-

dent and assessing his condition, failing to obtain ade-

quate imaging tests, and failing to diagnose and treat his

cardiac condition; and that the Radiology defendants had

been negligent in reviewing decedent’s chest x-ray, failing to

order additional imaging—including a CT scan—and fail-

ing to diagnose decedent’s heart condition. Plaintiff further

2

According to evidence in the trial court record, an “aortic dissection” occurs

when the aorta—the main artery carrying blood from the heart—tears and

causes blood to leak out around the heart, compressing the heart until it stops

beating.

252 Martineau v. McKenzie-Willamette Medical Center

alleged that defendants’ negligence had caused decedent’s

death. Second, plaintiff separately asserted a lost chance

claim under Oregon’s survival statute, ORS 30.075, alleg-

ing that defendants’ negligence had “caused [decedent] to

suffer a loss of a chance at a better medical outcome that he

would have been able to pursue as a negligence claim had he

survived.”

Before trial, on defendants’ motion, the trial court

dismissed plaintiff’s lost chance claim; her wrongful death

claim then proceeded to trial. At the close of evidence, over

plaintiff’s objection, the trial court included UCJI 44.03—

which states that physicians “are not negligent merely

because their efforts were unsuccessful” and that a physi-

cian “does not guarantee a good result by undertaking to

perform a service”—in the instructions to the jury. The jury

returned a verdict in defendants’ favor, finding that the

Radiology defendants were not negligent but that the ER

defendants were negligent; however, it further found that

their negligence was not a cause of damages to decedent.

As noted, the Court of Appeals reversed. That court

concluded that (1) UCJI 44.03 was an incorrect statement of

the law, and likely to mislead the jury; (2) that instructional

error was not harmless; and (3) plaintiff’s lost chance claim

was viable under Smith v. Providence Health & Services, 361

Or 456, 393 P3d 1106 (2017), and Oregon’s survival statute,

ORS 30.075. Martineau, 320 Or App at 544, 547, 561-62.

II. ANALYSIS

The Court of Appeals opinion and the parties’

briefing in this court addressed the jury instruction issue

first before turning to the lost chance claim. Although that

reverses the chronology of events—the trial court’s dismissal

of plaintiff’s lost chance claim occurred before trial and the

court instructed the jury at the end of trial—we follow suit

and address the jury instruction issue first.

A. UCJI 44.03

We begin by setting out several principles that

apply to jury instructions generally, as well as our stan-

dard of review on the UCJI 44.03 issue. The goal of jury

Cite as 371 Or 247 (2023) 253

instructions is to “reduce the relevant law to terms read-

ily grasped by the jury without doing violence to the appli-

cable legal rule.” Rogers v. Meridian Park Hospital, 307 Or

612, 616, 772 P2d 929 (1989). The wording of jury instruc-

tions, therefore, should be plain, clear, and simple. Estate of

Michelle Schwartz v. Phillip Morris Inc., 348 Or 442, 454,

235 P3d 668, adh’d to on recons, 349 Or 521, 246 P3d 479

(2010). Instructions that are misleading or confusing are

grounds for reversal. Id. When reviewing a challenge to a

trial court’s decision to include a particular instruction, we

read the instructions in their entirety to determine whether

they state the law accurately. State v. Woodman, 341 Or 105,

118, 138 P3d 1 (2006).

In general, parties in a civil action are entitled

to jury instructions on their theory of the case “if their

requested instructions correctly state the law, are based on

the current pleadings in the case, and are supported by evi-

dence.” Purdy, 355 Or at 227 (quoting Hernandez v. Barbo

Machinery Co., 327 Or 99, 105, 957 P2d 147 (1998) (inter-

nal quotation marks omitted)). In addition, as just noted,

instructions must not be confusing or misleading. On review,

plaintiff does not contend that UCJI 44.03 is not based on

the pleadings in the case or that it is unsupported by the evi-

dence. Instead, the only issues presented are whether that

instruction is an incorrect statement of the law and whether

it was confusing or misleading to the jury. We conclude that

it was neither, in the context of this case.

Because UCJI 44.03 is a negligence instruction,

and because we read a trial court’s jury instructions in their

entirety to determine whether they state the law accurately,

we start by examining all the negligence instructions that

the trial court provided to the jury. The trial court gave the

jury the following instructions on negligence, ending with

the UCJI 44.03 instruction:

“The law assumes that all persons, including physi-

cians, have obeyed the law and have been free from neg-

ligence. The mere fact alone that a patient experienced an

adverse outcome is not sufficient to prove negligence. It

is, however, something you may consider along with other

evidence.

254 Martineau v. McKenzie-Willamette Medical Center

“The plaintiff has made a claim for negligence against

[d]efendants. This requires the plaintiff to prove each of

the following by a preponderance of the evidence; that the

defendants’ conduct was negligent[,] and [that] the defen-

dants’ negligent conduct was the cause of harm to the

plaintiff.

“Physicians who are specialists in a particular field of

medicine have the duty to use that degree of care, skill,

and diligence that is used by ordinar[il]y careful special-

ists practicing in the same medical field and the same or

similar—and in the same or similar community. A failure

to use such care, skill, or diligence is negligence.

“Physicians are not negligent merely because their

efforts were unsuccessful. A physician does not guarantee

a good result by undertaking to perform a service.”

The first two paragraphs of those instructions are mod-

eled on UCJI 20.01, concerning negligence and causation.3

The third paragraph is taken from UCJI 44.02.4 No party

challenges those instructions. The last paragraph—the

instruction that plaintiff contends is both inaccurate and

confusing—is taken from UCJI 44.03, entitled “Professional

Perfection Not Required.”

The paragraph based on UCJI 44.03 has two

sentences. The first sentence—“[p]hysicians are not neg-

ligent merely because their efforts were unsuccessful”—

conveys essentially the same information to the jury as

the first paragraph—“[t]he mere fact alone that a patient

experienced an adverse outcome is not sufficient to prove

3

UCJI 20.01 provides:

“The law assumes that all people have obeyed the law and have been free

from negligence. The mere fact alone that an accident or injury occurred is

not sufficient by itself to prove negligence. It is, however, something you may

consider along with other evidence.

“The plaintiff has made a claim for negligence against the defendant.

This requires the plaintiff to prove each of the following: (1) The defendant’s

conduct was negligent; (2) The defendant’s negligent conduct was a cause of

harm to the plaintiff; and (3) The harm was reasonably foreseeable.”

4

UCJI 44.02 provides:

“Physicians who are specialists in a particular field of medicine have

the duty to use that degree of care, skill, and diligence that is used by ordi-

narily careful specialists practicing in the same medical field and in the

same or a similar community. A failure to use such care, skill, or diligence is

negligence.”

Cite as 371 Or 247 (2023) 255

negligence.” The first paragraph, which is based on UCJI

20.01, was given to the jury in this case without objection.

Plaintiff does not argue on review that there is any material

difference between that statement and the first sentence of

UCJI 44.03.

Thus, determining whether the trial court erred

in giving the UCJI 44.03 instruction turns on whether the

second sentence of that instruction—“[a] physician does

not guarantee a good result by undertaking to perform a

service”—is a correct statement of the law and was not con-

fusing or misleading to the jury. We begin by observing that

this court has stated that a physician is not “a guarantor of

good results.” Clemens v. Smith, 170 Or 400, 407, 134 P2d

424 (1943) (stating that it is a “well-recognized principle of

law in malpractice cases” that a physician is not “a guaran-

tor of good results”); Hotelling v. Walther, 169 Or 559, 562,

130 P2d 944 (1942) (“Dentists, like physicians and surgeons,

are not guarantors of good results.”). In addition, in many

cases, this court has stated the same principle, using the

word “cure” rather than “result.” See, e.g., Mayor v. Dowsett,

240 Or 196, 214, 400 P2d 234 (1965), questioned on other

grounds by Arrowood Indemnity Co. v. Fasching, 369 Or

214, 503 P3d 1233 (2022) (stating that it is an “established

principle that a physician is not * * * a warrantor of cure”

(internal quotation marks omitted)); Eckleberry v. Kaiser

Foundation et al., 226 Or 616, 626-27, 359 P2d 1090 (1961)

(“It is the universal rule * * * that a physician is not a war-

rantor of a cure.”); Crewse v. Munroe, 224 Or 174, 177, 355

P2d 637 (1960) (physician is not warrantor of a cure); Malila

v. Meacham, 187 Or 330, 354, 211 P2d 747 (1949), abrogated

in part by Rogers, 307 Or at 615 (“It is well settled that a

physician or dentist is not a warrantor of cures[.]”); Hamilton

v. Kelsey, 126 Or 26, 29, 268 P 750 (1928) (physician’s under-

taking to treat a patient “is not an absolute one to cure, not

to restore a condition of good health,” nor is the physician

“an insurer of the efficacy of his services”).5

5

Courts in other jurisdictions have approved instructions using similar

terms. See, e.g., Lange v. Schultz, 627 F2d 122, 127 n 4 (8th Cir 1980) (approving

instruction stating that “the doctor is not a guarantor of a good result”); Smith

v. Koslow, 757 NW2d 677, 679, 681 (Iowa 2008), overruled on other grounds by

Alcala v. Marriott Intern, Inc., 880 NW2d 699 (Iowa 2016) (approving instruction

stating that “[t]he mere fact that a party was injured does not mean that a party

256 Martineau v. McKenzie-Willamette Medical Center

Notwithstanding those broad pronouncements,

plaintiff argues, and the Court of Appeals held, that the

second sentence of UCJI 44.03 is misleading or incorrect

because the word “result” can sometimes mean something

other than the ultimate outcome for a patient. That is,

plaintiff argues, a physician effectively “guarantees” the

avoidance of injuries that would not occur in the absence

of negligence, and a “result” therefore includes actions that

a physician would be compelled to take to comply with the

standard of care, such as ordering or conducting tests that

might disclose something crucial about the patient’s condi-

tion. Thus, in plaintiff’s view, by stating that a physician

“does not guarantee a good result,” UCJI 44.03 improp-

erly suggests to the jury that substandard care might be

permissible.

We disagree with that understanding of the word

“result” in the context of a physician undertaking to provide

medical services to a patient. The dictionary defines “result”

to mean anything “that results as a consequence, effect,

issue, or conclusion.” Webster’s Third New Int’l Dictionary

1937 (unabridged ed 2002). Thus, the plain meaning of the

word “result”—applied in this context—suggests a conse-

quence or outcome for the patient. Understanding “result”

to refer to the consequences or outcome for the patient is

consistent with how this court has used that word in medi-

cal negligence cases.

was negligent”); Sennert v. McKay, 56 SW2d 105, 106-07 (Mo 1932) (approving

instruction stating that “the defendant is not an insurer of a good result when

undertaking the treatment of a case”); Miller v. Defiance Regional Med. Ctr.,

No L-06-1111, 2013 WL 4563473 at *10 (Ohio Ct App, Dec 31, 2007) (approv-

ing instructions stating that “[t]he fact that the doctor’s treatment did not bring

about a cure, or fulfill the patient’s expectations, does not, by itself prove that

the doctor was negligent” and that “[a] physician does not guarantee that his

care and treatment of a patient will always be successful, nor does a physician

promise that nothing serious will result thereof”); Rooney v. Medical Center

Hosp. of Vermont, 162 Vt 513, 522, 649 A2d 756, 761 (Vt 1994) (approving instruc-

tion stating that a doctor does not “guarantee a good result”); Christensen v.

Munsen, 123 Wash 2d 234, 247-48, 867 P2d 626, 633 (1994) (approving instruc-

tion stating that “[a]n ophthalmologist does not guarantee the results of his

or her care and treatment” and that “[a] poor medical result is not, in itself,

evidence of negligence”); Nowatske v. Osterloh, 198 Wis 2d 419, 443-44, 543

NW2d 265, 274 (1996), abrogated on other grounds by Nommensen v. American

Continental Ins. Co., 246 Wis 2d 132, 629 NW2d 301 (2001) (approving instruc-

tion stating that “[a] physician does not guarantee the results of his care and

treatment”).

Cite as 371 Or 247 (2023) 257

As we have noted, in other medical malpractice

cases, the court has approved the same principle—a phy-

sician is not a guarantor of a good result—using the word

“cure” rather than “result.” Depending on the context, then,

the word “result” as used in UCJI 44.03 may or may not be

different from a “cure,” but those cases show that we have

always treated the “result” in a medical negligence case as

referring to the consequences or outcome for a patient, not

the steps that a physician may or even should take in assess-

ing and treating a patient. A physician’s evaluation, exam-

ination, and diagnosis of a patient are not “results” in and of

themselves. The standard of care may require a physician to

order a CT scan, for example, but the CT scan itself is not a

“result,” nor is the decision to order—or not to order—a CT

scan a result. Rather, a CT scan is a tool to generate infor-

mation that a physician uses to further assess and treat the

patient. If that assessment and treatment had been success-

ful in this case, then the “result” may have been that the

decedent would have survived.

As we have stated, we consider a trial court’s

instructions in their entirety to determine whether they

stated the law accurately. The trial court below gave defen-

dants’ requested UCJI 44.03 instruction immediately after

instructing the jury that “[t]he mere fact alone that a patient

experienced an adverse outcome is not sufficient to prove

negligence” and that a physician is negligent if the physi-

cian fails to use “that degree of care, skill, and diligence

that is used by ordinar[il]y careful specialists practicing

in the same medical field and the same or similar commu-

nity.” When viewed together, the instructions as a whole in

the context of this case—which involved the worst possible

outcome for the patient—appropriately told the jury that

it must look to the standard of care, not the bad result, in

determining whether defendants were negligent.6

6

We acknowledge that, in some circumstances, instructing the jury that a

physician “does not guarantee a good result by undertaking to perform a service”

may not be very useful to the jury. For example, in some cases, the “result”—the

consequences or outcome for the patient—may be in dispute. In addition, some

physicians perform limited services as part of a medical team’s assessment and

treatment of a patient. In that context, the “result” of the physician’s services

could be understood to mean that the physician finished providing services to the

patient. If the physician failed to meet the standard of care in performing those

258 Martineau v. McKenzie-Willamette Medical Center

The jury’s findings in this case—that the ER defen-

dants had been negligent, but the Radiology defendants had

not been negligent—supports that conclusion. If the jury

thought that substandard care was permissible because the

physicians did not guarantee a good result, then the jury

might have found that neither set of defendants had been

negligent. The finding that the ER defendants had been

negligent, but the Radiology defendants had not, suggests

that the jury appropriately based its findings on the evi-

dence relating to each set of defendants’ alleged failures to

meet the standard of care, and not on whether substandard

care might have been permissible because physicians do not

guarantee a good result.

Plaintiff contends, and the Court of Appeals also

reasoned, that UCJI 44.03 is comparable to the “error-of-

judgment” instruction that we determined was confusing

and incorrect in Rogers. 307 Or at 619-20. We disagree. The

instruction at issue in Rogers provided as follows:

“ ‘[1] A physician is charged with applying without error

those principles and learnings that are settled and agreed

upon by all members of the medical profession. [2] In some

cases, there may be reasonable differences of opinion

among members of the medical profession as to the nature

of the patient’s condition or the proper course of treatment.

[3] When there is such a difference of opinion, the physi-

cian must exercise reasonable judgment. [4] A physician is

liable for an error of judgment if the physician fails to act

with reasonable care and skill in exercising that judgment.

[5] A physician is not liable for an error in judgment if the

physician acts with reasonable care and skill in exercising

such judgment.’ ”

Id. at 615 (quoting instruction (brackets in Rogers)).

We concluded that that instruction was confusing

and incorrect for several reasons. First, this court had noted

prior criticism of the instruction dating back to the 1930s—

with no case from this court addressing the instruction

services, the physician could be liable for medical negligence if the physician’s

failure to meet the standard of care was a cause of harm to the patient. The

word “result” under those circumstance could be understood to refer to both the

completion of the physician’s negligent services and the harmful consequences

for the patient.

Cite as 371 Or 247 (2023) 259

since that time—and a more recent case from the Court of

Appeals had found the instruction “wanting.” Id. at 617 (cit-

ing King v. Ditto, 142 Or 207, 218, 19 P2d 1100 (1933) (not-

ing the criticism), and Ellis v. Springfield Women’s Clinic, 67

Or App 359, 361, 678 P2d 268, rev den, 297 Or 228 (1984)

(finding the instruction wanting)). Second, we observed that

courts in other jurisdictions had disapproved of the error-

of-judgment instruction. Rogers, 307 Or at 618. Finally, a

sentence-by-sentence analysis of the instruction revealed

that the wording suggested “that substandard conduct

is permissible if it is garbed as an ‘exercise of judgment.’ ”

Id. at 620.

UCJI 44.03 shares none of the characteristics that

led us to conclude in Rogers that the “error-of-judgment”

instruction was flawed. Aside from the Court of Appeals’

decision in this case, no Oregon appellate court has criti-

cized UCJI 44.03 in a medical negligence case. And, as

noted earlier, courts in other jurisdictions have been approv-

ing instructions comparable to UCJI 44.03. Finally, as dis-

cussed above, our analysis of each sentence of UCJI 44.03

demonstrates that the instruction was not inaccurate or

confusing in the context of this case.

The concurring opinion states that instructing

the jury that a physician does not guarantee a good result

“obscures the standard of care,” 371 Or at 279 (Flynn,

C. J., concurring in part and concurring in the judgment),

reasoning that, because (1) a physician “guarantees” to

meet the standard of care; and (2) complying with the

standard of care may ensure a “good result”; therefore,

(3) the physician sometimes guarantees a good result,

id. at 282. That reasoning overlooks the fact that UCJI

44.03 states that a physician does not guarantee a good

result by undertaking to perform a service—that is, by sim-

ply agreeing to treat a patient, a physician does not prom-

ise or guarantee a particular outcome for the patient.

Moreover, meeting the standard of care might make a

good result more likely, but it does not guarantee a good

result for the patient. There are no “guaranteed” outcomes

in medicine; there is only a requirement that physicians

meet the standard of care in evaluating and treating their

patients.

260 Martineau v. McKenzie-Willamette Medical Center

We conclude that UCJI 44.03 was not an incorrect

statement of the law in this case and that it would not have

been confusing to the jury.7 Therefore, the trial court did not

err in giving that instruction to the jury.8

B. Lost Chance Claim

We turn to the trial court’s pretrial decision to

grant defendants’ motion to dismiss plaintiff’s “lost chance”

claim, which, as noted, she had asserted separately from

her wrongful death claim.9 Plaintiff’s complaint grounded

her lost chance claim in Oregon’s survival statute, ORS

30.075, which provides in subsection (1) that the personal

representative of a decedent may maintain an action on the

decedent’s behalf “if the decedent might have maintained

an action, had the decedent lived, against the wrongdoer for

an injury done.” In reversing the court’s dismissal of that

claim, the Court of Appeals concluded that plaintiff’s lost

chance claim was cognizable under ORS 30.075(1) and this

court’s decision in Smith. Martineau, 320 Or App at 561-

62. On review in this court, defendants contend that ORS

30.075(1) does not apply where a personal representative

alleges that a defendant’s negligent conduct caused the dece-

dent’s death—as opposed to merely causing an injury. Under

those circumstances, defendants continue, any lost chance

claim is essentially subsumed within plaintiff’s wrongful

death action brought under ORS 30.020, which, they argue,

provides the exclusive remedy for an action seeking dam-

ages from a wrongdoer who allegedly caused a decedent’s

death.

Defendants’ contention raises a question of stat-

utory interpretation, to which we apply our traditional

7

Based on that conclusion, we need not address whether any instructional

error was harmless.

8

Our decision is limited to the use of UCJI 44.03 in this case. We note that

the Uniform Civil Jury Instruction Committee withdrew UCJI 44.03 after the

Court of Appeals’ decision in this case. We express no opinion on the committee’s

decision. However, as we have noted, the first sentence of UCJI 44.03 is duplica-

tive of another uniform instruction. And as we also have noted, in other circum-

stances not presented here, the second sentence of the instruction might not be

very useful to the jury.

9

As explained more fully below, in a medical malpractice action, a lost

chance claim (or “loss-of-chance” claim) alleges that a defendant’s negligence

caused the plaintiff to lose the chance of a favorable medical outcome.

Cite as 371 Or 247 (2023) 261

methodology. See, e.g., State v. Gaines, 346 Or 160, 171-72,

206 P3d 1042 (2009) (court gives primary weight to stat-

utory text in context, with appropriate additional weight

accorded to any relevant legislative history); PGE v. Bureau

of Labor and Industries, 317 Or 606, 611, 859 P2d 1143

(1993) (context includes other provisions of the same statute

and other related statutes); SAIF v. Walker, 330 Or 102, 109,

996 P2d 979 (2000) (context also includes case law inter-

preting the statute at issue and related statutes, including

earlier versions of those statutes). In applying that method-

ology, we attempt to discern the intent of the legislatures

that enacted the statutes. ORS 174.020; State v. McDowell,

352 Or 27, 30, 279 P3d 198 (2012).

1. Statutory text and context

We begin with the text of the two key statutes at

issue—ORS 30.020(1), which provides the basis for a wrong-

ful death action, and ORS 30.075(1), which sets out the basis

for a survival action.

Subsection (1) of ORS 30.020 applies when a per-

son’s “death” was caused by another person’s wrongful act or

omission. It provides, in part:

“When the death of a person is caused by the wrong-

ful act or omission of another, the personal representa-

tive of the decedent * * * may maintain an action against

the wrongdoer, if the decedent might have maintained an

action, had the decedent lived, against the wrongdoer for

an injury done by the same act or omission.”

Subsection (2) describes two types of damages that are

generally recoverable in a wrongful death action: dam-

ages to compensate the decedent’s estate and close family

members10 for their economic and noneconomic losses—for

example, the cost of memorial and burial services, pecuni-

ary losses to the estate, and compensation for the family’s

loss of the society, companionship, and services of the dece-

dent—and damages to compensate for the decedent’s own

economic and noneconomic losses suffered during the period

10

The family members that could receive compensation under the statute

are the decedent’s spouse, children, stepchildren, stepparents, and parents. ORS

30.020(2)(d).

262 Martineau v. McKenzie-Willamette Medical Center

between the time of the wrongful conduct causing injury

and the decedent’s death. ORS 30.020(2)(a) - (e); see also ORS

31.705(2) (defining economic and noneconomic damages).11

That second category of damages includes an amount that

would “justly, fairly and reasonably have compensated the

decedent for disability, pain, suffering and loss of income

during the period between injury to the decedent and the

decedent’s death.” ORS 30.020(2)(b).

ORS 30.075, referred to as the survival statute,

applies when a person suffers “injuries” allegedly caused by

a defendant’s wrongful acts or omissions. Subsection (1) of

that statute provides, in part:

“Causes of action arising out of injuries to a person,

caused by the wrongful act or omission of another, shall

not abate upon the death of the injured person, and the

personal representatives of the decedent may maintain an

action against the wrongdoer, if the decedent might have

maintained an action, had the decedent lived, against the

wrongdoer for an injury done by the same act or omission.”

We first note that the survival statute, at the outset, refers

to “causes of action” arising out of injuries to a person caused

by another, whereas the wrongful death statute refers to

maintenance of “an action.”12 That disparity is notewor-

thy, because, under the Oregon Rules of Civil Procedure,

an “action” may include one or more “causes of action” or

11

The wrongful death statute describes the types of damages recoverable

during the period between the wrongful conduct and the decedent’s death to

include “reasonable charges necessarily incurred for doctors’ services, hospital

services, nursing services, [and] other medical services * * * rendered for the

decedent” (ORS 30.020(2)(a)); and an amount which “[w]ould justly, fairly and

reasonably have compensated the decedent for disability, pain, suffering and

loss of income during the period between injury to the decedent and the dece-

dent’s death[.]” ORS 30.020(2)(b). Charges for medical services and compensation

for loss of income would be included in “economic damages” as defined in ORS

31.705(2)(a), while the other categories of damages would be treated as “noneco-

nomic damages” as defined in ORS 31.705(2)(b). For ease of reference, we use

the terms “economic damages” and “noneconomic damages” to describe the types

of damages recoverable under ORS 30.020(2) to compensate decedent for losses

during the period between the wrongful conduct and the decedent’s death.

12

As discussed below, although the survival statute refers, at the outset, to

“causes of action,” it later states that the personal representative “may maintain

an action” against the wrongdoer if the decedent “might have maintained an

action” against the wrongdoer for the same act or omission if the decedent had

lived. ORS 30.075(1).

Cite as 371 Or 247 (2023) 263

“claims.” See Peterson v. Temple, 323 Or 322, 327 n 3, 918

P2d 413 (1996) (stating that the terms “cause of action” and

“claim” are synonymous); Troutman v. Erlandson, 287 Or

187, 201, 598 P2d 1211 (1979) (stating that “claim” or “cause

of action” means “a group of facts which entitled plaintiff to

relief”). More specifically, there is “one form of action known

as a civil action,” ORCP 2, generally commenced by filing

a complaint, ORCP 3, which is a pleading that must sepa-

rately state “[e]ach separate claim[.]” ORCP 13 B; ORCP 16

C. “Claims,” in turn, may be alleged “in the alternative,”

ORCP 16 D; each claim must contain a “plain and concise

statement of the ultimate facts constituting a claim for

relief,” ORCP 18 A; and a plaintiff “may join in a complaint

* * * as many claims * * * as the plaintiff has against an

opposing party,” ORCP 24 A. See also Peterson, 323 Or at

327 n 3 (noting that the Oregon Rules of Civil Procedure

“abandon[ed] the common law terms ‘cause of action’ and

‘cause of suit’ in favor of the term ‘claim for relief’ * * * or

some variant of that term”).

Thus, the wrongful death statute, ORS 30.020(1),

authorizes the personal representative of a decedent to

“maintain an action” against the wrongdoer when the dece-

dent’s death was caused by the wrongdoer’s wrongful act

or omission, but it does not expressly mention the types

of “claims” or “causes of action” that can be brought in a

wrongful death action. The survival statute, ORS 30.075(1),

by contrast, refers to “causes of action”—or claims—arising

out of a person’s injuries caused by a defendant’s wrongful

acts or omissions, and it precludes abatement of those sur-

vival statute “causes of action” upon the death of the injured

person.

The statutory damages provisions—or lack thereof—

are also informative. As noted above, the wrongful death

statute describes the types of damages recoverable in a

wrongful death action, ORS 30.020(2), but the survival

statute does not specify the types of damages that may be

recoverable in a survival cause of action. However, the sur-

vival statute does state that, if a wrongful death action is

brought, then any damages to compensate the decedent for

“disability, pain, suffering and loss of income during the

period between injury to the decedent and the resulting

264 Martineau v. McKenzie-Willamette Medical Center

death of the decedent may only be recovered in the wrongful

death action[.]” ORS 30.075(3) (emphasis added).

Thus, a personal representative bringing a wrong-

ful death action alleging that a defendant’s wrongful con-

duct caused a decedent’s death can assert a claim to recover

economic and noneconomic damages suffered by the dece-

dent during the period between the wrongful conduct that

caused the injury and the decedent’s subsequent death only

in the wrongful death action. The issue, then, is whether a

lost chance survival claim is among the types of claims that

can be brought in a wrongful death action or instead—as

defendants contend—such a claim is precluded where the

personal representative alleges that a defendant’s wrongful

conduct caused the decedent’s death.

In addressing that issue, the parties point out that

both statutes authorize a personal representative to “main-

tain an action” against a wrongdoer “if the decedent might

have maintained an action, had the decedent lived, against

the wrongdoer for an injury done by the same act or omis-

sion.” ORS 30.020(1); ORS 30.075(1). Plaintiff contends that

that wording in the survival statute authorizes her to bring

a lost chance survival claim because the injury that she

alleged—that decedent had suffered “a loss of a chance at

a better medical outcome that he would have been able to

pursue as a negligence claim had he survived”—is a viable

survival claim under ORS 30.075. Defendants counter that

decedent’s “lost chance” in the context of this case can mean

only that he lost the chance of surviving, instead of dying,

and that such a claim cannot be brought under the survival

statute because it is an inherent part of plaintiff’s wrongful

death claim.

Both parties overlook the fact that the wrongful

death statute addresses “actions,” not “claims,” as explained

above. Relatedly, and as we explain next, nothing in the

text of ORS 30.020 and ORS 30.075 necessarily precludes

a personal representative from bringing—in a wrongful

death action—a lost chance injury claim in addition or as an

alternative to a wrongful death claim. However, as we also

explain below, a personal representative cannot bring such

a claim under the survival statute.

Cite as 371 Or 247 (2023) 265

We begin by framing a hypothetical question posed

by the text of the disputed provision in both statutes: If the

decedent had lived, could he have “maintained an action”

against defendants for “an injury done”? Because the focus

of that text is on the nature of the action alleged, not on

whether the decedent died, the question here is more clearly

stated as whether—if decedent had lived but had suffered

injuries caused by defendants’ allegedly negligent conduct—

could he have brought a personal injury action (here, alleg-

ing medical negligence) against defendants? Under both

statutes, the answer to that hypothetical question is clearly

“yes.”

That, in turn, poses a further question: Assuming

that the decedent could have maintained a personal injury

action under both statutes had the decedent lived, can a per-

sonal representative bring an injury action after the dece-

dent dies, and if so, can it be brought as a claim under the

wrongful death statute, ORS 30.020(1), or the survival stat-

ute, ORS 30.075(1), or both? The resolution of that question

depends on the allegations in the complaint. ORS 30.020(1)

applies where a plaintiff alleges that a decedent’s death had

been caused by the wrongful acts or omissions of another,

whereas ORS 30.075(1) applies where a plaintiff alleges

that a decedent’s injuries—but not the decedent’s death—

had been caused by the wrongful acts or omissions of

another.

That brings us to the key textual dispute raised by

the parties’ arguments: whether a personal representative

may bring a lost chance claim under the survival statute,

ORS 30.075, when the personal representative alleges that

the same wrongful acts or omissions alleged to have caused

the injury are also alleged to have caused a decedent’s death,

thereby authorizing the personal representative to bring a

wrongful death action under ORS 30.020(1).

Defendants contend that ORS 30.075(3)—which

describes when a prevailing party attorney fee award is pre-

cluded in a survival action—demonstrates that a lost chance

injury claim under the survival statute cannot be brought in

the wrongful death action. That subsection provides:

266 Martineau v. McKenzie-Willamette Medical Center

“Subsection (2) of this section [permitting a reasonable

attorney fee award to the prevailing party in a survival

action under ORS 30.075(1)] does not apply to an action

for damages arising out of injuries that result in death. If

an action for wrongful death under ORS 30.020 is brought,

recovery of damages for disability, pain, suffering and loss of

income during the period between injury to the decedent and

the resulting death of the decedent may only be recovered in

the wrongful death action, and the provisions of subsection

(2) of this section are not applicable to the recovery.”

(Emphasis added.) Defendants contend that the emphasized

text supports their proposition that, where the defendants’

wrongful acts or omissions are alleged to have caused an

injury that, in turn, led to the decedent’s death, the personal

representative cannot bring an injury claim—such as plain-

tiff’s lost chance claim—under the survival statute as an

alternative to a wrongful death claim.

We do not read that provision to mean, as a cat-

egorical matter, that an injury claim is always precluded

when a personal representative alleges that a defendant’s

wrongful conduct caused the decedent’s death. Rather, the

text of subsection (3) of ORS 30.075 suggests two outcomes:

(1) that economic and noneconomic damages to compensate

for the decedent’s losses during the period between injury

and death are recoverable in the wrongful death action only;

and (2) that a personal representative seeking to recover

such damages in the wrongful death action is not entitled to

recover attorney fees that otherwise would be recoverable in

a survival action under ORS 30.075(2).

As a textual matter, the statutes do not appear to

preclude a personal representative—who alleges that a defen-

dant’s wrongful conduct had caused the decedent’s death—

from bringing an alternative lost chance injury claim to

recover economic and noneconomic damages incurred by the

decedent during the period between a defendant’s wrongful

conduct and the decedent’s death. However, the statutes do

appear to require that such a claim can only be brought in

the wrongful death action. We turn to the historical context

and case law, to further consider the statutory interpreta-

tion questions.

Cite as 371 Or 247 (2023) 267

2. Historical context and case law

The historical context and case law make it clear

that the difference between claims under the wrongful

death and survival statutes turns on whether the wrong-

ful conduct is alleged to have caused the decedent’s death.

At common law, an action for bodily injury abated upon the

death of the injured party. Mendez v. Walker, 272 Or 602,

603-04, 538 P2d 939 (1975). As a result, such causes of

action continued “only to the extent the common law has

been modified by statute.” Id. at 604. The Oregon legislature

enacted our state’s first wrongful death statute in 1862.

General Laws of Oregon, Civ Code, ch IV, title VI, § 367,

p 187 (Deady 1845-1864). In Hughes v. PeaceHealth, 344

Or 142, 147, 156, 178 P3d 225 (2008), this court recognized

that the 1862 statute “defin[ed] the action * * * on a clean

slate,” observing that “wrongful death is an entirely stat-

utory cause of action and has no basis in the common law.”

The 1862 statute provided that a wrongful death action

belonged to the deceased person’s personal representative

and that the cause of action was for “injury done by the

same act or omission that would have supported an action

by the deceased, had he or she lived[.]” General Laws of

Oregon, Civ Code, ch IV, title VI, § 367, p 187 (Deady 1845-

1864).

The purpose of the wrongful death statute is to

“remove death as a bar to bringing the claim, not to make

death the central event of the action.” Howell v. Willamette

Urology, P.C., 344 Or 124, 129, 178 P3d 220 (2008). In

Howell, we noted that that reading of Oregon’s current

wrongful death statute, ORS 30.020, was “confirmed by” a

sentence in subsection (1), which provides that a wrongful

death action “shall be commenced within three years after

the injury causing the death of the decedent is discovered or

reasonably should have been discovered by the decedent, by

the personal representative or by a person for whose benefit

the [wrongful death] action may be brought.” Id. (empha-

sis added; brackets in Howell). That part of the statute, we

explained, recognizes that a wrongful death action asserted

under ORS 30.020(1) may arise for statute of limitations

purposes while the decedent is still alive. Id.

268 Martineau v. McKenzie-Willamette Medical Center

In Howell, the claim at issue was the plaintiff’s

claim that the defendant’s negligence “allegedly caused

decedent’s death.” Id. at 126. Howell recognized that, under

the wrongful death statute, such a claim could arise as an

injury claim before the decedent’s death. Id. at 129. Although

that set of facts was not presented in Howell, if a defendant’s

wrongful conduct caused an injury resulting in a claim, and

the decedent later died as a result of the alleged wrongful

conduct while the claim was pending, the wrongful death

statute provides that the decedent’s personal representa-

tive may maintain a wrongful death action “if the decedent

might have maintained an action, had the decedent lived,

against the wrongdoer for an injury done by the same act

or omission.” ORS 30.020(1). Procedurally, the personal rep-

resentative would be substituted for the decedent as the

named plaintiff pursuant to ORCP 34.13

In 1965—more than 80 years after the enactment

of Oregon’s first wrongful death statute—the legislature

enacted the survival statute, ORS 30.075. Or Laws 1965,

ch 620, § 4. Before the 1965 enactment, former ORS 121.010

(1963), repealed by Or Laws 1965, ch 620, § 1, had provided

that “ ‘[a] cause of action arising out of an injury to the person

dies with the person.’ ” Bell v. Tri-Met, 353 Or 535, 542, 301

P3d 901 (2013) (quoting former ORS 120.010 (1963) (brack-

ets in Bell)). The statutorily mandated “death” of an injury

claim had been subject to a few exceptions, including wrong-

ful death actions, actions related to the injury of a child,

and actions that achieved a verdict before the party’s death.

Id. at 542-43 (citing statute); see also id. at 552-53 (Baldwin,

J., dissenting) (describing statutory exceptions and not-

ing that former ORS 121.010 (1963) operated “to preclude

any representative from continuing or bringing a personal

injury cause of action on behalf of a deceased person”).

Thus, under the law that existed before ORS

30.075(1) was enacted in 1965, a personal representative

alleging that a defendant’s wrongful acts or omissions had

13

Under ORCP 34 A, an injury claim does not “abate” when the plaintiff dies.

Instead, under ORCP 34 B, the court “shall” allow the action to be continued

by the decedent’s personal representative if the personal representative files a

motion for substitution as plaintiff within one year after the decedent’s death.

Cite as 371 Or 247 (2023) 269

caused the decedent’s death could bring a wrongful death

action, but a personal representative alleging that a defen-

dant’s wrongful acts or omissions had caused the decedent’s

injuries—but not death—could not bring or continue a per-

sonal injury action. Then, the 1965 enactment of ORS 30.075

ended the prohibition on bringing or continuing a personal

injury action after the injured person’s death, by repealing

former ORS 121.010 (1963). Bell, 353 Or at 543.

Bell highlights the functional difference between a

wrongful death action under ORS 30.020(1) and a survival

action under ORS 30.075(1). The decedent in Bell was injured

while disembarking from a bus. A year later, the decedent

died “from causes unrelated to the bus accident.” Id. at 537.

And a year after that, the decedent’s personal represen-

tative brought a negligence action against the defendant

(the transportation district that had operated the bus). The

injury claim in Bell was brought under the survival statute,

ORS 30.075(1), and not under the wrongful death statute,

ORS 30.020(1). Id.

The issue in Bell was whether the personal repre-

sentative’s claim was time-barred by a two-year statute of

limitations. In holding that the claim was barred, the court

noted that, for both a wrongful death action and a survival

action, “the legislature has created rights and liabilities

that did not previously exist in statute or at common law.”

Id. at 545-46. The court explained that both statutes served

the same purpose—to remove death as a bar to bringing the

claim—but in different contexts. Id. at 546. Where the defen-

dant’s wrongful conduct is alleged to have caused a person’s

death, as in Howell, the action may be brought as a wrong-

ful death action under ORS 30.020(1). Where the defen-

dant’s wrongful conduct is alleged to have caused a person’s

injury, but not the person’s death, as in Bell, the action may

be brought or continued after the injured person’s death as

a survival action under ORS 30.075(1). See id. at 543 (not-

ing that, by enacting ORS 30.075(1) and simultaneously

repealing former ORS 121.010 (1963), the legislature “cre-

ated new rights and liabilities arising from personal injury

where an injured person dies before or after commencing an

action”).

270 Martineau v. McKenzie-Willamette Medical Center

With that understanding of the statutes, we turn

to an examination of two cases addressed by both parties—

Joshi v. Providence Health System, 342 Or 152, 149 P3d 1164

(2006), and Smith. Defendants contend that Joshi precludes

plaintiff from bringing her lost chance claim, while plaintiff

contends that Smith allows her to bring the claim as a sur-

vival claim. As we will explain, neither case fully resolves

the issue presented in this case.

The plaintiff in Joshi brought a wrongful death

action against multiple health care providers, alleging that

they had failed to timely diagnose and treat her husband’s

stroke with appropriate medications, leading to his death.

The decedent had arrived at the hospital by ambulance, com-

plaining of severe headache, blurred vision, and dizziness,

but was discharged with a prescription for pain medication.

He continued to experience vision problems and disorienta-

tion and was transported back to the hospital four days after

his original discharge. That time, the hospital personnel

determined that he had suffered a stroke. Treatment was

unsuccessful, and he died two days later. 342 Or at 155-56.

At trial, the plaintiff’s medical expert testified that

timely administration of appropriate medications would

have increased the decedent’s chance of survival by, at most,

30 percent. Id. at 156. Reasoning that the plaintiff therefore

could not prove that the defendant’s conduct, more likely

than not, had caused the decedent’s death, the trial court

directed a verdict in the defendants’ favor, and the Court

of Appeals affirmed. Id. We allowed review to address two

related issues: (1) the standard of causation that applied;

and (2) whether expert testimony that the defendants’ con-

duct probably increased the chance of the decedent’s death

created a jury question as to causation. Id. at 157.

In construing the wrongful death statute, ORS

30.020, we resolved the first issue by applying a “reasonable

probability” standard to the statutory word “caused,” con-

cluding that a wrongful death plaintiff must “demonstrate

that the defendant’s negligent act or omission more likely

than not brought about the death of the decedent.” Id. at 159.

On the second issue, we explained that, “[a]lthough depriva-

tion of a 30 percent chance of survival may constitute an

Cite as 371 Or 247 (2023) 271

injury, the injury that is compensable under ORS 30.020 is

death.” Id. at 164. We therefore affirmed the directed ver-

dict in the defendants’ favor, holding that the plaintiff had

“failed to prove the elements of the wrongful death action.”

Id.

Defendants contend that our decision in Joshi

precludes a lost chance claim under the survival statute,

ORS 30.075(1), when the plaintiff alleges that a defendant’s

medical negligence caused the decedent’s death. In that

situation, according to defendants, the statutory wrongful

death action authorized by ORS 30.020 provides the plain-

tiff’s exclusive remedy. But Joshi did not address whether

a lost chance claim could be brought under Oregon’s sur-

vival statute as an alternative or in addition to a wrongful

death claim. Indeed, at the time when Joshi was decided,

we had not yet determined whether a lost chance claim was

cognizable in Oregon under any circumstance. That issue

was presented eleven years later in Smith, to which we now

turn.

The plaintiff in Smith went to the emergency room

after he began experiencing visual difficulties, confusion,

slurred speech, and a headache, with concerns that he

might be having a stroke. The defendant doctors examined

the plaintiff, ordered a CT scan, and eventually discharged

him from the hospital without advising him to take aspirin.

A week later, an MRI showed that the plaintiff had suffered

substantial brain damage from a stroke, causing permanent

impairment. Smith, 361 Or at 458-59.

The plaintiff brought a common-law medical neg-

ligence action, alleging that, as a result of the defendants’

negligent failure to conduct a thorough neurological exam-

ination, order an MRI on an expedited basis, and start the

plaintiff on aspirin, the plaintiff had “ ‘lost a chance for

treatment which, 33 percent of the time, provides a much

better outcome, with reduced or no stroke symptoms.’ ”

Id. at 460 (quoting complaint). The plaintiff further alleged

that he had suffered “ ‘serious and permanent injuries’ ” and

“ ‘lost his ability to work.’ ” Id. He sought to recover damages

for lost wages, impairment of earning capacity, and noneco-

nomic damages. Id. The trial court granted the defendants’

272 Martineau v. McKenzie-Willamette Medical Center

motion to dismiss, but we reversed that ruling. Id. at 461,

485.

We first addressed whether our decision in Joshi

had “already resolved the question whether a loss of chance

is cognizable under Oregon law[.]” Id. at 463. On that ques-

tion, we agreed with the plaintiff, stating that we had not yet

decided “whether an injured plaintiff alleging common-law

medical malpractice may recover for loss of a chance at a

better medical outcome.” Id. We explained that “[t]he feature

distinguishing Joshi from [Smith] is the wrongful death

statute, ORS 30.020,” which was “at the heart of” Joshi. Id.

Thus, we treated the question of whether a plaintiff could

bring a lost chance claim as “an issue of first impression” in

Oregon. Id. at 466.

Next, we reviewed the development of the lost

chance theory in medical malpractice actions, “to provide

context for our analysis of whether and how [a] plaintiff may

use that theory.” Id. at 467. We noted that some jurisdictions

had characterized lost chance theories of recovery, in the

medical malpractice context, as involving a “relaxation of

the causation standard.” Id. at 469. But we further noted

that commentators and a majority of courts in the jurisdic-

tions that had approved the lost chance doctrine had favored

an “injury-based analytical approach.” Id. But then, we con-

tinued, a significant number of states instead had contin-

ued to adhere to a traditional “all-or-nothing” approach that

“requires the plaintiff to establish that the patient would

have had a better than 50 percent chance of survival or a

favorable outcome, which then triggers a right to recover all

damages resulting from the defendant’s malpractice.” Id. at

472.

Ultimately, we concluded in Smith that, in common-

law negligence cases involving medical malpractice, Oregon

should recognize “a limited loss-of-chance theory of recov-

ery.” Id. at 482. We explained that the causation element of

a medical negligence cause of action “can apply to the loss

of chance when [the lost chance] is understood as an injury.”

Id. at 479. In other words, when the injury in a medical mal-

practice action is the lost chance, the plaintiff may allege a

lost chance claim, which then requires the plaintiff to prove

Cite as 371 Or 247 (2023) 273

“more likely than not, [that] the defendant’s negligence

caused the plaintiff to lose the chance of a favorable medical

outcome.” Id.

We further explained in Smith that, to state a lost

chance claim, “a plaintiff must plead the percentage and

quality of [the] loss of chance, which in turn must be based

on [both] the plaintiff’s experts and relevant scientific evi-

dence that meets the standard of reasonable medical prob-

ability.” Id. at 483. The plaintiff’s pleading in Smith met

that requirement, because the plaintiff had “alleged the loss

of a substantial chance by alleging a 33 percent chance of

total or close to total recovery from his stroke had defen-

dants provided him with non-negligent care.” Id. To prevail

on that claim, the plaintiff would have needed to prove that

the defendants’ negligence more likely than not caused him

to lose the opportunity for treatment that, 33 percent of the

time, would have resulted in his recovery with reduced or no

stroke symptoms.

Because the plaintiff in Smith had survived, there

was no reason to address whether a lost chance claim could

be brought under the survival statute, ORS 30.075, as an

alternative or in addition to a wrongful death claim under

ORS 30.020. That case, then, like Joshi, does not resolve the

parties’ dispute in this case, though it does help to under-

stand the parameters of a properly alleged lost chance claim

when the injured person was not deceased.

We next turn to the relevant legislative history of

ORS 30.020 and, more particularly, ORS 30.075, to deter-

mine whether that history sheds any additional light on the

legislature’s intent.

3. Legislative history

The legislative history confirms that the legislature

did not intend to allow a plaintiff to recover attorney fees

in a wrongful death action by bringing a survival claim in

that action. As noted in Bell, 353 Or at 542, ORS 30.075

was enacted in 1965 through House Bill (HB) 1517 (1965).

Unfortunately, very little legislative history about the ini-

tial enactment of that bill is available. The minutes show

that an attorney who had drafted the bill, at the request of a

274 Martineau v. McKenzie-Willamette Medical Center

representative, stated that the bill was designed to allow the

survival of a cause of action after the death of the injured

person. Minutes, House Committee on Judiciary, Mar 30,

1965, 2 (statement of Tom Thorpe).

In 1995, the legislature modified subsection (2) of

ORS 30.075—the prevailing party attorney fee provision—

and added subsection (3)—the exception to the attorney fee

provision—to the statute. Senate Bill (SB) 385 (1995); Or

Laws 1995, ch 618, § 21. During the development of those

amendments, the counsel to the Senate Judiciary Civil

Process Committee stated that then-proposed subsection (3)

addressed “the problem that apparently is ongoing with that

statute that deals with people trying to attach the survival

statute to wrongful death statutes.” Tape Recording, Senate

Committee on Judiciary, Subcommittee on Civil Process, SB

385, Apr 24, 1995, Tape 43, Side B (statement of Committee

Counsel Max Williams) (emphases added). During a later

hearing, counsel stated:

“We’ve inserted new language with respect to the issue

involving survival statutes. You’ll see * * * a new subsection

[(3)] has been added and makes clear that the subsection

does not apply to any action for damages arising out of inju-

ries that result in death. * * * This was to resolve the prob-

lem that exists where * * * actions under the survival stat-

ute are being brought in conjunction with wrongful death

claims as a means of recovering attorney fees. The lan-

guage of this third paragraph here resolves that problem.”

Tape Recording, Senate Committee on Judiciary, Subcom-

mittee on Civil Process, SB 385, May 1, 1995, Tape 44, Side

A (statement of Committee Counsel Williams). Committee

Counsel continued, stating that “[t]he idea [of adding sub-

section (3)] is * * * to break the practice of trying to plead a

survival statute case with a wrongful death case as a means

of recovering attorney fees.” Id.

The legislative history of Oregon’s original wrong-

ful death statute—which, as noted above, was enacted in

1862—is not available. Somewhat more recently, though,

a 1995 amendment to ORS 30.020 in SB 385—the same

bill that added subsection (3) to ORS 30.075—removed a

subsection from ORS 30.020 that had provided as follows:

Cite as 371 Or 247 (2023) 275

“(3) The court shall reduce recovery under this section by

the amount of recovery, if any, by the decedent or the dece-

dent’s personal representative under ORS 30.075 because

of the act or omission which caused the decedent’s death.”

The same committee’s counsel explained that that change

was made “to match up” ORS 30.020 with the amendments

made to ORS 30.075. Tape Recording, Senate Committee on

Judiciary, Subcommittee on Civil Process, SB 385, May 1,

1995, Tape 44, Side A (statement of Committee Counsel

Williams).

The combined effect of the 1995 amendments to the

survival statute and the wrongful death statute—adding

subsection (3) to ORS 30.075 and deleting the prior reference

to the survival statute from ORS 30.020—suggests that the

legislature did not intend for plaintiffs to continue bringing

claims under the survival statute, ORS 30.075, in order to

recover attorney fees when bringing a wrongful death action

under ORS 30.020, alleging that the defendant’s wrongful

conduct had caused the decedent’s death.

4. Summary

In sum, the text, context, case law, and available

legislative history of the wrongful death statute, ORS

30.020, and the survival statute, ORS 30.075, all confirm

that both statutes were intended to remove death as a bar

to bringing or continuing an action in two different situa-

tions: (1) When the defendant’s wrongful conduct allegedly

caused a deceased person’s injuries—but not that person’s

death—the personal representative may bring a survival

action under ORS 30.075 after the injured person’s death;

and (2) when the defendant’s wrongful conduct allegedly

caused the person’s death, the personal representative may

bring a wrongful death action under ORS 30.020, but not

a survival action under ORS 30.075. And, if the decedent

had brought a personal injury action before the decedent’s

death—and the personal representative alleges that the

decedent’s death was caused by the same wrongful acts or

omissions that had caused the injury—then the personal

representative can maintain that action as a wrongful

death action under ORS 30.020 and recover the economic

and noneconomic damages the decedent incurred between

276 Martineau v. McKenzie-Willamette Medical Center

the time of the wrongful conduct and the decedent’s death.

But the personal representative cannot bring a claim under

the survival statute as a means of recovering attorney fees

in the wrongful death action.

The limited lost chance theory of injury that we

adopted in Smith allows a plaintiff in a medical malprac-

tice case to recover damages to compensate for a patient’s

lost chance of a more favorable outcome. That theory of

injury logically fits within a medical negligence case such

as Smith, where a surviving patient brought his own action

alleging negligence. Again, the injury alleged in Smith was

the lost chance of a plaintiff who had suffered permanent

brain damage to receive treatment that would have allowed

the patient to live with “reduced or no stroke symptoms.” 361

Or at 460. Such a theory of injury could also logically fit if,

for example, the plaintiff in Smith had eventually died due

to the defendants’ alleged medical negligence. Under those

circumstances, the plaintiff’s personal representative might

have a cognizable lost chance claim—asserted as an alter-

native or additional claim in the wrongful death action—to

obtain compensation for the decedent’s lost chance to receive

treatment that could have allowed him to live longer before

he died.

Thus, in some circumstances, a personal represen-

tative could assert a lost chance claim in a wrongful death

action as an alternative or in addition to a wrongful death

claim. A lost chance claim is not categorically precluded by

alleging, in the alternative, that the defendant’s negligence

caused the decedent’s death. A personal representative

could, for example, recover damages under ORS 30.020(2)

on a lost chance claim brought in the wrongful death action

to compensate for the economic and noneconomic damages

that the decedent suffered during the period between the

defendant’s wrongful conduct and the decedent’s death. But

the personal representative cannot use the survival statute

as a basis for bringing a lost chance claim in the wrong-

ful death action to recover her attorney fees under ORS

30.075(2) because the 1995 amendments to the wrongful

death and survival statutes were intended to preclude that

result.

Cite as 371 Or 247 (2023) 277

5. Application to this case

Applying those principles, we turn to the allegations

in plaintiff’s complaint. Plaintiff captioned her lost chance

claim as a “survival action” and alleged that defendants’

medical negligence had caused decedent “to suffer a loss of

a chance at a better medical outcome.” She did not specify

what that “better medical outcome” would have been other

than alleging that defendants’ medical negligence caused

decedent’s death. She sought to recover economic and non-

economic damages without specifying what those damages

would be, and she sought to recover her attorney fees under

ORS 30.075(2).

Plaintiff’s allegation that defendants’ medical neg-

ligence caused decedent’s death did not preclude her from

bringing a lost chance claim under Smith in the wrongful

death action. To the extent that the economic and noneco-

nomic damages that plaintiff sought to recover on her lost

chance claim were to compensate for the damages that dece-

dent had suffered during the period between the wrongful

conduct and decedent’s death, she could have recovered those

damages in the wrongful death action under ORS 30.020(2).

But plaintiff was not entitled to bring a lost chance claim as

a “survival action” that is separate from her wrongful death

action and recover attorney fees under ORS 30.075(2).

Although alleging a lost chance claim as an alter-

native or in addition to a wrongful death claim is not cate-

gorically precluded by an allegation that defendants’ wrong-

ful conduct caused decedent’s death, plaintiff’s allegations

in this case did not state a lost chance claim that is cog-

nizable under Smith. Plaintiff’s allegations did not involve

any lost chance of treatment, or a lost chance to live with

reduced or no symptoms or some other better outcome, as

had been alleged in Smith. And plaintiff’s allegations did

not include any allegations about “the percentage and qual-

ity” of any such loss, also as required by Smith. She did not

plead, for example, that defendants’ negligence more likely

than not caused decedent to lose a 33 percent chance to live

a longer life or to live with reduced or no symptoms. Neither

did she plead that defendants’ negligence more likely than

not increased the likelihood that decedent would die from

278 Martineau v. McKenzie-Willamette Medical Center

his medical condition. Such allegations, had they been pled,

might have been analogous to the lost chance claim recog-

nized in Smith.14

Finally, because plaintiff did not specify in her

complaint the economic and noneconomic damages that she

sought to recover on her lost chance claim, she did not allege

any types of damages that would be any different from the

economic and noneconomic damages that are recoverable

only in a wrongful death action under ORS 30.020(2) to

compensate decedent for economic and noneconomic losses

during the period between defendants’ wrongful conduct

and decedent’s death. Rather, the only recovery plaintiff

sought that would be different from the damages recover-

able under ORS 30.020(2) were her attorney fees, which she

claimed under the survival statute, ORS 30.075(2). But as

explained above, attorney fees under the survival statute

are not recoverable in a wrongful death action.

We therefore conclude that plaintiff did not plead

a separate, cognizable lost chance claim in this wrongful

death action. Accordingly, the trial court did not err in grant-

ing defendants’ motion to dismiss her lost chance claim.

III. CONCLUSION

As to plaintiff’s wrongful death claim under ORS

30.020, we conclude that the trial court did not err in pro-

viding the jury with an instruction based on UCJI 44.03

because, in this case, that instruction correctly stated the

law and would not have been misleading or confusing to the

jury. As to plaintiff’s lost chance claim under the survival

statute, ORS 30.075, we conclude that plaintiff did not state

a cognizable claim and, therefore, that the trial court did not

err in granting defendants’ motion to dismiss that claim.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

14

To the extent that plaintiff’s theory is that she should be able to recover

damages without proving that, more likely than not, defendants’ negligence

caused decedent’s death, so long as she proves that there was a chance (although

not more likely than not) that defendants’ negligence caused decedent’s death,

the claim fails because, in Smith, we rejected the theory that a lost chance claim

can be based on a lowered standard of proof of causation. 361 Or at 482.

Cite as 371 Or 247 (2023) 279

FLYNN, C. J., concurring in part and concurring

in the judgment.

I agree with the majority that the trial court did

not commit reversible error, either in holding that the alle-

gations of the survival action in this case fail to state a

claim or in instructing the jury, but I write separately to

emphasize that the concept described in Uniform Civil Jury

Instruction (UCJI) 44.03 does not belong in a uniform jury

instruction.1 That instruction, which was incorporated into

the jury instructions in this case, told the jury, in relevant

part, that “[a] physician does not guarantee a good result by

undertaking to perform a service.” UCJI 44.03.

The rule for jury instructions is that “[e]verything

which is reasonably capable of confusing or misleading the

jury should be avoided.” Estate of Michelle Schwarz v. Philip

Morris Inc., 348 Or 442, 454, 235 P3d 668, adh’d to on recons,

349 Or 521, 246 P3d 479 (2010) (internal quotation marks

omitted). And I agree with the Court of Appeals that UCJI

44.03 fails that test. Martineau v. McKenzie-Willamette

Medical Center, 320 Or App 534, 544, 514 P3d 520 (2022).

The majority suggests that the jury would have understood

the challenged instruction, in context, as equivalent to the

established principle that physicians are not warrantors of

a “cure.” 371 Or at 257. Even accepting that premise, the

instruction distracted the jury from the relevant inquiry

and was “reasonably capable of confusing or misleading the

jury,” for at least two reasons.

First, I agree with the Court of Appeals that

instructing the jury on the concept described in UCJI 44.03

obscures the standard of care by which the jury must eval-

uate whether the physician was negligent. Martineau, 320

Or App at 544. Since 1975, the standard of care in medical

negligence cases has been prescribed by statute. Or Laws

1975, ch 796, § 10d. That statute currently specifies:

“A physician licensed to practice medicine or podiatry

by the Oregon Medical Board has the duty to use that

degree of care, skill and diligence that is used by ordinarily

1

As the majority noted, the Uniform Civil Jury Instruction Committee with-

drew UCJI 44.03 after the Court of Appeals issued its decision. 371 Or at 260 n 8.

280 Martineau v. McKenzie-Willamette Medical Center

careful physicians in the same or similar circumstances in

the community of the physician or a similar community.”

ORS 677.095(1).

Although the majority is correct that opinions of

this court have endorsed the general proposition that a “phy-

sician is not a warrantor of a cure,” those opinions predate

the statutory standard of care and almost exclusively reflect

attempts to explain why certain evidence is legally insuf-

ficient to prove medical negligence. See Mayor v. Dowsett,

240 Or 196, 214, 400 P2d 234 (1965), questioned on other

grounds by Arrowood Indemnity Co. v. Fasching, 369 Or 214,

503 P3d 1233 (2022) (citing the principle that a physician

is not a “warrantor of cure” to explain why the doctrine of

res ipsa loquitur generally is unavailable to prove medical

negligence) (internal quotation marks omitted)); Crewse

v. Munroe, 224 Or 174, 177, 355 P2d 637 (1960) (rejecting

the argument that negligence could be presumed from evi-

dence that anesthesia had caused spinal inflammation by

citing the proposition that “a physician is not a warrantor

of a cure” and that “[h]is liability rests solely on accountabil-

ity for his negligent or wrongful acts”); Malila v. Meacham,

187 Or 330, 354, 211 P2d 747 (1949), abrogated in part by

Rogers v. Meridian Park Hospital, 307 Or 612, 772 P2d 929

(1989) (citing the principle “that a physician or dentist is not

a warrantor of cures” in connection with the principle “that

the doctrine of res ipsa loquitur does not apply in malprac-

tice cases”); Hamilton v. Kelsey, 126 Or 26, 29-30, 268 P 750

(1928) (before considering whether evidence permitted jury’s

verdict for the plaintiff in malpractice action, reciting that a

physician’s “undertaking is not an absolute one to cure, not

to restore a condition of good health; nor is he an insurer of

the efficacy of his services”); see id. (“[A physician’s] under-

taking is to exercise that degree of care, skill, diligence, and

knowledge which is ordinarily possessed by the average of

the members of his profession in good standing in similar

localities.”).2

2

In one post-1975 case, Rogers, 307 Or at 615, 619, this court referred to the

proposition that “a doctor does not promise a cure” as a “notion” and a source of

the “error of judgment” rule, which this court then concluded was not appropriate

to include in a jury instruction, because it is “unduly confusing and incorrectly

states the law.”

Cite as 371 Or 247 (2023) 281

The one case in which this court considered a jury

instruction that included the principle that physicians do not

guarantee a “cure,” involved an instruction that included an

important and correct limitation on that principle:

“A doctor does not undertake to warrant a cure or that

his treatment shall necessarily be successful, and is not

responsible for want of success unless that want of success

results from a failure to exercise ordinary care.”

Eckleberry v. Kaiser Foundation et al, 226 Or 616, 625, 359

P2d 1090 (1961) (emphasis added). We held that the given

instruction was a correct statement of the law, but we did

not discuss whether the instruction was misleading or con-

fusing. Id. at 626. But UCJI 44.03 omits that key limitation

and, as a result, fails to instruct the jury how to analyze a

case in which the want of a cure “results from a failure to

exercise ordinary care.”

Thus, it is not enough that UCJI 44.03 may faith-

fully paraphrase a principle described in some of this court’s

decisions, when those decisions do not purport to describe

a principle that should be included in a jury instruction

on the applicable standard of care. As we have cautioned,

even “[a]n instruction that accurately quotes or faithfully

paraphrases an appellate decision is not necessarily beyond

reproach.” Rogers, 307 Or at 616. Indeed, “because many

appellate opinions are written with no view that they will

be turned into instructions, care must be exercised in using

the language of these opinions for instructions to juries.” Id.

(summarizing warning of Amfac Foods v. Int’l Systems, 294

Or 94, 99 n 3, 654 P2d 1092 (1982)). Particularly where the

applicable standard of care is now governed by statute, add-

ing the abstract and unlimited proposition set out in UCJI

44.03 is likely to obscure that standard and confuse or mis-

lead the jury.

The second reason that UCJI 44.03 is “reasonably

capable of confusing or misleading the jury” is that it directs

the jury to base its determination of whether the physician

was negligent on a consideration that is only a consequence

of that determination—whether the physician has “guaran-

tee[d]” a result, or cure. The ordinary meaning of a “guar-

antee” is something that one person is entitled to receive

282 Martineau v. McKenzie-Willamette Medical Center

from another. See Webster’s Third New Int’l Dictionary 1007

(unabridged ed 2002) (defining “guarantee,” most perti-

nently, as “an agreement by which one person undertakes

to secure another in the possession or enjoyment of some-

thing”). And in the context of medical care, ORS 677.095(1)

describes the primary thing that a physician undertakes in

treating a patient: to exercise “that degree of care, skill and

diligence that is used by ordinarily careful physicians in the

same or similar circumstances in the community.”

Thus, whether a physician in a particular case can

be understood to have guaranteed a “cure” is irrelevant

to the jury’s assessment of whether the physician’s perfor-

mance met the standard of care. It is simply a conclusion

that follows from a jury’s answer to that question: If the jury

finds that the physician’s performance met the standard of

care specified in ORS 677.095(1)—despite failing to deliver

a cure—then it follows that the physician’s undertaking of

treatment did not involve the guarantee of a cure. But if a

jury finds that a patient would have experienced a cure had

the physician exercised the requisite “degree of care, skill

and diligence,” then it follows that the undertaking of treat-

ment effectively was a guarantee of that cure.

Either way, the concept of guaranteeing a cure sim-

ply follows as a consequence of the jury’s negligence finding.

And instructing the jury to consider a consequence of its

finding on the question of negligence risks confusing the jury

about the standard that it must use to evaluate whether the

physician was negligent. Worse, in a case in which the evi-

dence permits a jury to find that a patient would have been

cured by a physician exercising the “degree of care, skill and

diligence that is used by ordinarily careful physicians in the

same or similar circumstances in the community[,]” UCJI

44.03 can mislead the jury to believe that the physician was

not negligent, despite any failure to exercise the requisite

degree of care, skill, and diligence, if the consequence of

such a finding would be that the physician guaranteed a

cure.

Because UCJI 44.03 was “reasonably capable of con-

fusing or misleading the jury,” that instruction was improper

under the test articulated in Schwarz, 348 Or at 454. I

Cite as 371 Or 247 (2023) 283

emphasize that this court has never previously approved of

instructing the jury on the concept described in UCJI 44.03

without the limiting language used in Eckleberry. And if,

as the majority implies, some prior criticism of an instruc-

tion is required before we will hold that it was error to give

that instruction, 371 Or at 259, then this separate opinion

can serve that function for future cases. In sum, although I

agree that the trial court’s judgment should be affirmed, I

disagree with the majority’s conclusion that the trial court

did not err in its instructions to the jury. Accordingly, I

respectfully concur in part and concur in the judgment.

Walters, S. J., joins in this concurring opinion.