25 Trial Lawyer • Winter 2024 Cody Hoesly By Cody Hoesly OTLA Guardian Recently I worked with another law- yer on a medical malpractice case against Columbia Memorial Hospital, which has facilities in Astoria in Clatsop County. The case involved obstetrical malpractice that left a baby with permanent brain damage, including cerebral palsy. The baby is now six years old, and his severe developmental delays will impair all activities for the duration of his life. How did this happen? An obstetrician and three nurses, all of whom worked at the hospital, induced labor in the baby’s mother after an unremarkable pregnancy. They then administered misoprostol, causing uterine hyperstimulation and decreased oxygenation to the baby. They failed to regularly measure the fetal heart rate and uterine contractions during labor, and failed to respond to abnormal fetal heart tracing and uterine contractions patterns, including decelerations and loss of variability. They failed to recognize maternalfetal heart rate confusion and signal ambiguity, and failed to expedite delivery by operative vaginal delivery or a Cesarean section in response to the concerning fetal heart tracing. When the baby was finally delivered, he was floppy, covered in meconium and did not cry. Approximately 13 hours after birth, he was observed suffering seizure activity and was transferred to OHSU for emergency care and treatment. He was admitted to the NICU there, where he received extensive medical care from more than fifty medical providers, including neonatologists, pediatric neurologists, pediatric neuroradiologists, nurses and physical therapists. An MRI taken the day after he was born showed hypoxic injuries of the acute profound type that were a result of profound lack of blood to his brain for 15-20 minutes that occurred before birth. Neonatologists at OHSU diagnosed him with hypoxic ischemic encephalopathy. After a lawsuit was filed in Multnomah County, the hospital moved to change venue to Clatsop County. The trial attorney representing the plaintiff hired me to handle the response to that motion and to the mandamus petition we expected the hospital to file if we defeated the motion. We needed to show that the hospital, despite being located in Clatsop County, “conducts regular, sustained business activity” in Multnomah County. ORS 14.080(2). We relied primarily on the facts that (1) the hospital for 20 years had been under contract with OHSU in Multnomah County to provide medical services to the hospital’s patients, including such integral hospital functions as chief medical officer, emergency, cardiology, oncology, urology, general surgery, vascular surgery and radiology; and (2) for several years, physicians credentialed by the hospital had been regularly providing direct patient care to the hospital’s patients from OHSU, including numerous forms of telemedicine in areas integral to the hospital’s business. We knew that, if we won, it would be momentous. It would provide a roadmap for showing that most of Oregon’s rural hospitals are amenable to suit in Multnomah County, as they too rely on contracts with OHSU and telemedicine provided by OHSU for integral hospital services. While my trial lawyer client created the evidentiary record, I wrote the response to the hospital’s motion, which involved significant research into the laws governing telemedicine in Oregon. Because the issue was somewhat novel, I researched the laws of other states and law review articles. THE BEATING HEART You and Your Appellate Lawyer See Appellate Lawyer p 26
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