41 Trial Lawyer • Fall 2023 well credentialed defense experts who will testify that the timing of surgery for cauda equina surgery makes no difference at all in a patient’s outcome. They will testify that any plaintiff’s expert's “anecdotal” descriptions of neurologic improvement in individual patients with CES that undergo surgery within an unspecified time from symptom onset is not something that can be relied upon to predict a cause and effect correlation between the timing of the surgery and the outcome from that surgery. There are similar defense arguments about causation made in other types of medical cases beyond CES. Venue Larry’s case was filed in Multnomah County, despite the care at issue occurring in Marion County and that he lived in Marion County. The defendants and their attorneys all worked in Marion County (none of the defendant doctors lived in Multnomah County nor worked there either). ORS 14.080(2) provides that, in an action against a corporation, venue is proper wherever the corporation “conducts regular, sustained business activity.” Anticipating that there would be a defense motion for change of venue, our office issued subpoena duces tecums to nearly every large hospital and clinic in Multnomah County seeking “any and all contracts, agreements, memoranda of understanding, or similar documents” between the entity and the defendant hospital, including “documents related to the provision of medical care, education or training programs, consultation services, laboratory services and referral agreements of any type.” Another productive tactic is to make the defendant hospital designate a corporate representative under ORCP 36(c) on topics such as billing practices, outof-county advertising, the outsourcing of medical staff or sending their own staff to Multnomah County for training and utilizing out-of-county resources for such crucial hospital functions such as imaging, nursing and lab results. When the inevitable motion to change venue arrived, our efforts allowed us to demonstrate to the court that the out-ofcounty hospital’s contacts in Multnomah County were not merely incidental but also sustained by the hospital continuously utilizing numerous facilities in Multnomah County for its radiology services, neurological and pediatric consults, as well as telemedicine and the use of Multnomah County nursing students to staff its hospitals and serve its patients. Ultimately, this was enough to persuade a motions judge to keep the case in Multnomah County. Every case is different We are fortunate to be in the business of trying to help make our clients’ lives better. In the end we were able to overcome the described challenges and others to successfully resolve the claims against the hospital and the primary neurosurgeon responsible for Larry’s negligent medical care and delay in treatment. The compensation we received helped our client to purchase his first home for his family and to have the resources in place to get the medical care he needed to make his life easier. There are few easy medical malpractice cases. But putting in the hard work up front and anticipating the likely challenges from the defense prior to filing the complaint goes a long way toward securing a positive outcome for our clients. Learn the medicine, get the right experts in place early on, anticipate the likely defense challenges and be prepared for the long fight. Rhett Fraser practices personal injury and medical malpractice in Oregon and Washington with the law firm of Huegli Fraser PC, 101 SW Main St., Ste. 1900, Portland, OR 97204. He constributes to OTLA Guardians at the Guardians’ Club level. Fraser can be reached at 971-266-8877 or rhett@hueglifraserlaw.com.
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