53 Trial Lawyer • Fall 2023 See Sheets 54 ORS 656.019 to set forth the timing and procedure for pursuing a civil claim (e.g. once the workers’ compensation claim process and remedies had been exhausted). Accordingly, the Legislature did not intend ORS 656.019 to set for a substantive right to a civil claim such that it operated as an exception to the scheme’s exclusive remedy requirements. Jury instruction stating that a physician “does not guarantee a good result by undertaking to perform a service” is permissible, and a plaintiff cannot bring a “lost chance” claim under ORS 30.075 (survival statute) together with a claim under ORS 30.020 (wrongful death statute). Martineau v. McKenzie-Willamette Med. Ctr., 371 Or 247 (2023); Bushong, J. The plaintiff was represented by Travis Eiva. Rhett Fraser filed an amicus brief on behalf of OTLA. The decedent in this medical negligence case was diagnosed with noncardiac chest pain by physicians at the McKenzie-Willamette Hospital emergency room. He was then sent home but died 24 hours later from an aortic dissection in his heart. The plaintiff, Jamie Martineau, the decedent’s wife and personal representative of his estate, filed a negligence action against the emergency room physician, the physician’s assistant, their employer (the emergency room defendants), and the radiologist and his employer (the radiology defendants), alleging two types of claims. First, she alleged a wrongful death claim under ORS 30.020, claiming the emergency room defendants were negligent in failing to diagnose and treat the decedent’s cardiac condition, that the radiology defendants had been negligent in reviewing the decedent’s chest X-ray and in failing to diagnose the decedent’s heart condition, and that defendants’ negligence had caused the decedent’s death. Second, she alleged a “lost chance” claim under Oregon’s survival statute, ORS 30.075, claiming the defendants’ negligence had the challenged jury instruction, the court held that the first part of the instruction had conveyed essentially the same information to the jury as a different instruction the trial court gave without objection. The court then held that the second part of the challenged instruction had been neither confusing nor misleading because the instructions correctly directed the jury to consider the law about the defendants’ standard of care, not the bad result to the decedent, in determining whether the defendants were negligent. The Supreme Court also held that the plaintiff had not pleaded a cognizable lost chance claim. The court explained that the plaintiff’s complaint had not alleged a lost chance of treatment or a lost chance to live with reduced or no symptoms, or the percentage and quality of any such loss. The plaintiff had not alleged that the defendants’ negligence more likely than not increased the likelicaused the 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, the defendants moved to dismiss the lost chance claim, and the trial court granted that motion. At the end of trial, the trial court gave a uniform jury instruction to the jury, over the plaintiff’s objection, to the effect that physicians “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 jury returned a verdict in the defendants’ favor, finding that the emergency room defendants had been negligent, but that their negligence was not the cause of damages to the decedent, and that the radiology defendants had not been negligent. The plaintiff appealed. The Supreme Court affirmed the trial court’s judgment. With respect to
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